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IS DAVIS A TRAITOR; 



OR 



WAS SECESSION A CONSTITUTIONAL RIGHT 



PREVIOUS TO 



THE WAR OF 1861 ? 



BY 
ALBERT TAYLOR BLEDSOE, A. M., LL.D., 

Late Professor of Mathematics in the University of Va. 



RICHMOND, VA. : 

The Hermitage Press, Inc. 
1907. 



e 



In 



1- 



I 



JStts. Dirgtnius Zli^wton, 
<£onfc6cratc Reunion, 

IHaB 30 . 3une 3 
^907 

REPUBLISHED BY 

MARY BARKSDALE NEWTON 

IN MEMORY OF HER HUSBAND 

VIRGINIUS NEWTON 

OF RICHMOND. VA, 



CONTENTS. 



CHAPTER I. 

Opinions respecting Secession determined by passion, not by 
reason Page 1 

CHAPTER II. 

The Issue; or Point in Controversy 6 

CHAPTER ni. 
" The Great Expounder " scouts the idea, that the States 
" acceded " to the Constitution 11 

CHAPTER IV. 

The first Resolution passed by the Convention of 1787 13 

CHAPTER v. 
The Constitution of 1787 a Compact 21 

CHAPTER VI. 

The Constitution of 1787 a Compact ^0 

CHAPTER Vn. 

The Constitution of 1787 a Compact 39 

CHAPTER VIII. 

The Constitution of 1787 a Compact between the States. — ^The 
Facts of the Ca^e 47 

CHAPTER IX. 

The Constitution a Compact between the States. — The Lan- 
guage of the Constitution 58 

CHAPTER X. 

The Constitution of 1787 a Compact between the States. — The 
Language of the Constitution 66 

CHAPTER XI. 

The Constitution of 1787 a Compact between the States. — The 
views of Hamilton, Madison, Morris, and other Framers of 
the Constitution '^^ 



CONTENTS. 
CHAPTER XII. 

The Coovention of 1787 describes the Constitution formed by 
them as a Compact between the States Page 90 

CHAPTER Xni. 

Mr. Webster vs. Mr. Webster 94 

CHAPTER XIV. 

The absurdities flowing from the Doctrine that the Constitu- 
tion is not a Compact between the States, but was made 
■ by the People of America as one Nation 104 

CHAPTER XV. 

The Hypothesis that the people of America form one Nation. .107 

CHAPTER XVI. 

Arguments in favor of the Right of Secession 125 

CHAPTER XVII. 

Arguments against the Right of Secession 163 

CHAPTER XVIII. 

Was Secession Treason ? 187 

CHAPTER XIX. 

The Causes of Secession 217 

CHAPTER XX. 

The Legislators of 1787 as Political Prophets 258 



PREFACE. 



It is not the design of this book to open the subject 
of secession. The subjugation of the Southern States, and 
their acceptance of the terms dictated by the North, may, 
if the reader please, be considered as having shifted the 
Federal Government from the basis of compact to that 
of conquest; and thereby extinguished every claim to the 
right of secession for the future. Not one word in the fol- 
lowing pages will at least be found to clash with that sup- 
position or opinion. The sole object of this work is to dis- 
cuss the right of secession with reference to the past; in 
order to vindicate the character of the South for loyalty, 
and to yipe off the charges of treason and rebellion from 
the names and memories of Jefferson Davis, Stonewall 
Jackson, Albert Sydney Johnston^ Eobert E. Lee, and of 
all who have fought or suffered in the great war of coer- 
cion. Admitting, then, that the right of secession no lon- 
ger exists; the present work aims to show, that, however 
those illustrious heroes may have been aspersed by the 
ignorance, the prejudices, and the passions of the hour, 
they were, nevertheless, perfectly loyal to truth, justice. 



viii 



PREFACE. 



and the Constitution of 1787 as it came from the hands 
of the fathers. 

The radicals themselves may, if they will only read the 
following pages, find sufficient reason to doubt their own 
infallibility, and to relent in their bitter persecutions of 
the South. 

The calm and impartial reader will, it is believed, discov- 
er therein the grounds on which the South may be vindi- 
cated, and the final verdict of History determined in favor 
of a gallant, but down-trodden and oppressed. People. 



IS DAVIS A TRAITOR? 



CHAPTER I. 

Opinions respecting Secession determined hy passion, not by reason. 

The final judgment of History in relation to the war of 
1861 will, in no small degree, depend on its verdict with 
respect to the right of secession. If, when this right was 
practically asserted by the South, it had been conceded by 
the North, there would not have been even a pretext for 
the tremendous conflict which followed. Is it not won- 
derful, then, that a question of such magnitude and import- 
ance should have been so little considered, or discussed? 
Perhaps no other question of political philosophy, or of 
international law, pregnant with such unutterable calami- 
ties, has ever been so partially and so superficially exam- 
ined as the right of secession from the Federal Union of 
the United States. From first to last it seems to have 
been decided by passion, and not by reason. The voice 
of reason, enlightened by the study of the facts of history 
and the principles of political philosophy, yet remains to 
be heard on the subject of secession. 

ISTo one, at present, denies that the States had a right to 
secede from the Union formed by the old Articles of Con- 
federation. Indeed, this right was claimed and exercised 
by the States, when they withdrew from that Confedera- 
tion in order to form ^' a more perfect Union." Yet, while 
that Union was standing and in favor with the people, the 
right of secession therefrom was vehemently denied. The 

[1] 



2 IS DAVIS A TRAITOR? 

reason of this is well stated by Mr. Madison in " The Fed- 
eralist." Having explained and vindicated the right of 
the States, or any portion of them, to secede from the 
existing Union, he adds : " The time has been when it was 
incumbent on all of us to veil the ideas which this para- 
graph exhibits. The scene has now changed, and with it 
the part which the same motives dictate."* That is to say, 
the time has been when it became all Americans, as patriots 
and worshippers of the existing Union^ to veil the right of 
secession ; but now it is the time to unveil this sacred right, 
and let the truth be seen! Accordingly, the Convention 
of 1787 unveiled this right, and the States, one after 
another, seceded from the Union; though the x\rticles by 
which it was formed expressly declared that it should be 
"perpetual," or last forever. 

The same thing happened, in a still greater degree, 
under the new and " more perfect Union." This, unlike 
the one for which it had been substituted, did not pro- 
nounce itself immortal. Still it was deemed incumbent on 
all men by Mr. Madison, and especially upon himself, to 
veil the right of secession from the new Union; which he, 
more than any other man, had labored to establish and 
preserve. But having exercised the right of secession from 
one compact between the States, how could he veil that 
right under another compact between the same parties? 
Having, for the benefit of his age, revealed the truth, how 
could he hope to hide it from all future ages? Having 
laid down the right of secession from one Federal Union, 
as the great fundamental law to which the new Union 
owed its very existence, how could he hope to cover it up 
again, and make the new compact forever binding on pos- 
terity? There is not, it is believed, in the whole range of 
literature, a sophism more ineffably weak and flimsy than 
the one employed by Mr. Madison to veil the right of 
secession from the new Union. 

* ]'>(]oriilist No. \liii. 



IS DAVIS A TRAITOR? 3 

The first compact^ says he^ was made by the Legislatures 
of tlie States, and the second by the people themselves of 
the States. Hence, although the States had seceded from 
the first compact or Union, he supposed, or hoped, they 
would have no right to secede from the second.* The 
first compact was, it is true, originally adopted by the 
Legislatures of the States; but then it was approved by 
the people themselves, who lived under it as the Constitu- 
tion and government of their choice. Were not the States, 
then, just as much bound by this compact, as if it had been 
originally made by the people themselves? What would 
be thought of an individual, who should approve and adopt 
as his own a contract made by his agent, and, having 
derived all the advantages of it, should seek to repudiate it 
on the ground that it was not originally entered into by 
himself? He would be deemed infamous. Yet, precisely 
such is the distinction and the logic of Mr. Madison, in his 
attempt to justify the act of secession from the first Union, 
and to deny the right of secession from the second Union 
between the same parties ! The two compacts are con- 
strued differently; because the one originally made by 
agents and afterwards ratified by the principals, and the 
other was originally made by the principals themselves f 
Could any sophism be more weak or flimsy? Is it not, 
indeed, in the eye of reason, as thin as gossamer, as trans- 
parent as the air itself? Hopeless, indeed, must be the 
attempt to find a difference between the two cases, which 
shall establish the right of secession in the one and not in 
the other ; since James Madison himself, with all his unsur- 
passed powers of logic and acute discrimination, was com- 
pelled to. rely on so futile a distinction. 

But the majority needed no veil, not even one as thin as 
that employed by Mr. Madison, to conceal the right of 
secession from their eyes. The mists raised by its own 
passions were amply sufficient for that purpose. The doc- 

* The Madison Papers, p. 1184. 



4 IS DAVIS A TRAITOR f 

trine of secession was regarded by the reigning majority, 
as simply equivalent to the destruction of "the best Gov- 
ernment the world had ever seen," or was ever likely to 
see. Hence, before the dread tribunal of the sovereign 
majority, the touch of secession was political death. The 
public men of the country, and all aspirants after office, 
shrank from it as from plague, pestilence, and famine. As 
to whether secession was a Constitutional right or other- 
wise, the multitude knew nothing^ and cared less ; but still, 
in their passionate zeal, they denounced it as rebellion, trea- 
son, and every other crime in the dark catalogue of politi- 
cal offences. Their leaders, having studied the subject as 
little as themselves, were no less ignorant respecting the 
merits of the question, and even more fierce in denouncing 
secession as the sum of all villainies, treasons, and rebel- 
lions. Thus, what the logic of Mr. Madison failed to accom- 
plish, was achieved by the rhetoric of angry politicians 
and the passions of an infuriated majority; that is, the 
right of secession was veiled. The object of this little book 
is simply to appeal from the mad forum of passion to the 
calm tribunal of reason. 

But why, it may be asked, appeal to reason? Has not 
the war of secession been waged, and the South subjuga- 
ted? Can reason, however victorious^ bind up the broken 
lieart, or call the dead to life? Can reason cause the des- 
olate, dark, waste places of the South to smile again, or 
the hearts of her downcast and dejected people to rejoice? 
Can reason strike the fetters from the limbs of the down- 
trodden white population of the South? True, alas! rea- 
son can do none of these things; but still she has a high 
office and duty to perform. For, however sore her calam- 
ities, all is not yet lost to our bleeding and beloved South. 
She still retains that which, to every true man, is infinitely 
dearer than property or life. She still retains her moral 
"wealth, — the glory of her Jacksons, her Sidney Johnsons, 
Tier Lees, her Davises, and of all who have nobly died or 



IS DAVIS A TRAITOR? 5 

suffered in her cause. These are her imperishable jewels; 
and, since little else is left to her, these shall be cherished 
with the greater love, with the more enthusiastic and 
undying devotion. 

Let no one ask, then, except a dead soul, why argue the 
question of secession ? For, it is precisely as this question 
is decided, that the Jacksons, the Johnsons, the Lees, and 
the Davises of the South, will be pronounced rebels and 
traitors, or heroes and martyrs; that the South itself will 
be disgraced, or honored, in the estimation of mankind. 
History is, at this moment, busy in making up her verdict 
on this momentous question; which is to determine so 
much that is most dear to every true son of the South. 
Shall we, then, remain idle spectators, mere passive look- 
ers-on, while the North is flooding the world with volumes 
against the justice of our cause? Shall we stand, like the 
dumb brutes around us, having no word to utter in the 
great cause of truth, justice and humanity, which is now 
pending at the bar of History? Or shall we, on the con- 
trary, contribute our mite toward the just decision of that 
glorious cause? The radicals themselves might, perhaps, 
derive some little benefit from our humble labors. For, if 
duly weighed and considered by them, these labors might 
serve to mitigate their wrath, and turn their thoughts 
from schemes of vengeance to the administration of jus- 
tice, from persecution and ruin to peace and prosperity. 
Be this as it may, however, I shall proceed to argue the 
right of secession; because this is the great issue on 
which the whole Southern people, the dead as well as the 
living, is about to be tried in the person of their illustrious 
chief, Jefferson Davis. 



CHAPTER II. 

The issue; or Point in Controversy. 

It is conceded, both by Webster and Story, that if the 
Constitution is a compact to which the States are the par- 
ties, then the States have a right to secede from the Union 
at pleasure. Thus, says Webster, in stating the conse- 
quences of Mr. Calhoun's doctrine — " if a league between 
sovereign powers have no limitation as to the time of 
duration, and contain nothing making it perpetual, it 
subsists only during the good pleasure of the parties, 
although no violation be complained of. If, in the opin- 
ion of either party, it be violated, such party may say he 
will no longer fulfill its obligations on his part, but will 
consider the whole league or compact at an end, although 
it might be one of its stipulations that it should be perpet- 
ual." In like manner Mr. Justice Story says — " The 
obvious deductions which may be, and, indeed, have been, 
drawn from considering the Constitution a compact 
between States, are that it operates as a mere treaty or 
convention between them, and has an obligatory force no 
longer than suits its pleasure or its consent continues,"* &c. 
Thus the great controversy is narrowed down to the sin- 
gle question — Is the Constitution a compact between the 
States? If so, then the right of secession is conceded, 
even by its most powerful and determined opponents; by 

* " Commentaries on the Constitution," vol. iii, p. 287, first 
published in 1833. 

[6] 



IS DAVIS A TRAITOR r 7 

the great jurist, as well as by " the great expounder " of 
the North. 

The denial that the Constitution was a compact, is pre- 
sented in every possible form, or variety of expression. 
We are told, that it was not made by the States, nor by 
the people of the States, but " by the people of the whole 
IJnited States in the aggregate." * The States, we are 
assured, did not accede to the Constitution ; it was ordained 
by the sovereign people of America as one nation. Echo- 
ing the bold assertion of Webster, Mr. Motley says, that 
" The States never acceded to the Constitution, and have 
no power to secede from it. It was ' ordained and estab- 
lished ' over the States by a power superior to the States, 
by the people of the whole land in their aggregate capa- 
city." t Tt was not made by the States, and it was not 
ratified by the States. It was, on the contrary, made 
and ordained by the people of America as one nation, 
and is, therefore, the constitution of a national govern- 
ment. Such is the doctrine which, in every mode of 
expression, is inculcated by the Storys, the Websters, and 
the Motleys of the North. 

When we consider, in the simple light of history, the 
manner in which the Constitution of the United States 
was made, or framed, and afterwards ratified, such asser- 
tions seem exceedingly wonderful, not to say inexplicable 
on the supposition that their authors were honest men. 
But who can measure the mysterious depths of party 
spirit, or the force of political passions in a democracy? 
I know something of that force; for, during the greater 
part of my life, I followed, with implicit confidence, those 
blind leaders of the blind, Mr. Justice Story and Daniel 
Webster. History will yet open the eyes of the world to 
the strange audacity of their assertions. 

Ever since the Declaration of Independence, there have 
been two great political parties in the United States; the 

* Webster, t Rebellion Record, vol. 1., p. 211. 



8 IS DAVIS A TRAITOR? 

one, regarding the American people as one nation, has 
labored to consolidate the Federal Union, while the other, 
attaching itself to the reserved rights of the States, has 
zealously resisted this tendency to consolidation in the 
central power. Even under the old Articles of Confeder- 
ation, or before the new Constitution was formed, these 
political opinions and parties existed. For, however 
strange it may seem, there were those who, even under 
those Articles, considered " the States as Districts of peo- 
ple composing one political society ;" * or the " American 
people as forming one nation." f Nay, in the great Con- 
vention of 1787, by which the Constitution was formed, it 
was boldly asserted by a leading member, " that we never 
were independent States, were not such now, and never 
could be, even on the principles of the Confederation. 
The States, and the advocates of them, were intoxicated 
wdth the idea of their sovereignty." I Now, if any aberra- 
tion of the mind under the influence of political passions 
could seem strange to the student of history, it would be 
truly wonderful, that such an assertion could have been 
put forth under the Articles of Confederation which 
expressly declared that " each State " of the Union formed 
by them " retains its sovereignty, freedom, and indepen- 
dence." § The author of that assertion did not interpret, 
he flatly contradicted, the fundamental law of the govern- 
ment under which he lived and acted. 

The above opinion or view of the old Articles of Con- 
federation passed away with the passions to which it owed 
its birth. No one, at the present day, supposes that the 
old Articles moulded the States into " one political soci- 
ety," or " nation," leaving them merely " districts of peo- 
ple." For since those Articles have passed away, and the 
struggle for power under them has ceased, all can clearly 

* The Madison Papers, p. 987. 

t Marshall's Life of Washington, vol. v, chap. 1. 

i The Madison Papers. § Art. 2. 



IS DAVIS A TKAITORf 9 

see what they so plainly announced that " each state " of 
the confederation established by them retained " its sover- 
eignty, freedom, and independence/' 

But the natures of men were not changed by changing 
the objects to which their political passions might attach 
themselves. Hence the same opposite tendencies arose 
under the new "Articles of Union," as the Constitution of 
1787 is habitually called by its authors, and produced the 
same conflicting parties. Each party had, of course, its 
extreme wing. There were those who, unduly depressing 
the States, identified their relations to the central power 
with that of so many counties to a state, or of individuals 
to an ordinary political community. On the other hand, 
there were those who, from an extreme jealousy of the 
central authority, resolved the States into their original 
independence, or into their condition under the Articles 
of Confederation. The watch-word of one party was the 
sovereignty of the Federal Union; and the watch-word of 
the other, was the sovereignty of the States. 

It was in the Senate of the United States, in 1833, that 
these two theories of the Constitution stood face to face in 
the persons of those two intellectual giants — Webster and 
Calhoun — then engaged in the most memorable debate of 
the ISTew World. It was then predicted, and events have 
since verified the prediction, that the destinies of America 
would hinge and turn on the principles of that great 
debate. The war of words then waged between the 
giants has since become a war of deeds and blood between 
the sections which they represented. Now the question 
is, on which side was right, truth, justice? 

This is precisely the question which, in 1833, the great 
combatants submitted to the decision of after ages. As 
he drew toward the close of his speech, Mr. Calhoun 
reminded his great antagonist " that the principles he 
might advance would be subjected to the revision of poster- 
ity." " I do not decline its judgment," said Mr. Webster, in 



10 IS DAVIS A TRAITOR f 

rising to reply, " nor withhold myself from its scrutiny." 
Mr. Webster's speech on this occasion is pronounced by his 
learned biographer * the greatest intellectual effort of his 
life, and is represented as having annihilated every posi- 
tion assumed by Mr. Calhoun. But the combatants did 
not submit the controversy to the judgment of Mr. Ever- 
ett ; they submitted it to " the revision of posterity." His- 
tory is the great tribunal to which they appealed; and his- 
tory will settle the great issue between them, and between 
the two hostile sections of the Union. 

It was in 1833, for the first time in the history of the 
country, that it was solemnly asserted and argued, that 
the Constitution of the United States was not a compact 
between the States. This new doctrine was simultane- 
ously put forth, by Mr. Justice Story in his " Commenta- 
ries on the Constitution of the United States," and by Mr. 
Daniel Webster in "the greatest intellectual effort of his 
life," that is, in his great speech in the Senate of the 16th 
of February, 1833. In order to show that the Constitu- 
tion is not a compact between the States, the position is 
assumed^ that it is not a compact at all. If it be a com- 
pact, say they, then the States had a right to secede. 
But it is not a compact; and hence secession is treason 
and rebellion. The great fundamental questions, then, on 
which the whole controversy hinges, are, first. Is the 
Constitution a compact? and, secondly. Is a compact 
between the States? These are the questions which shall 
and ought to be subjected to " the revision of posterity." 



Edward Everett. 



CHAPTER III. 

" The great expounder " scouts the idea, that the States " acceded '* 
to the Constitution. 

Mr. Webster was supposed to have studied the Consti- 
tution, and its history, more carefully and more profoundly 
than any other man. He habitually spoke, indeed, as if he 
had every particle of its meaning, and of its history, at 
his finger's end. Hence he acquired, at least among his 
political friends, the lofty title of " The great expounder." 
His utterances were listened to as oracles. If, indeed, his 
great mind had been guided by a knowledge of facts, or a 
supreme love of truth ; the irresistible force of his logic, and 
the commanding powers of his eloquence, would have jus- 
tified those who delighted to call him ^^ the god-like Dan- 
iel." But unfortunately, no part of his god-likeness con- 
sisted in a scrupulous regard for truth, or the accuracy of 
his assertions. He was, however, so great a master of 
words, that he stood in little need of facts, in order to pro- 
duce a grand impression by the rolling thunders of his elo- 
quence. I only wonder, that he was not also called, " The 
thundered." No one better understood, either in theory 
or in practice, the wonderful magic of words than Daniel 
Webster. 

" Was it Mirabeau," says he, " or some other master of 
the human passions, who has told us that words are 
things? They are indeed things, and things of mighty 
influence, not only in addresses to the passions and high- 
wrought feelings of mankind, but in the discussion of legal 
and political questions also; because a just conclusion is 

[11] 



13 IS DAVIS A TRAITOR? 

often avoided, or a false one reached, by the adroit substi- 
tution of one phrase, or one word, for another." Nothing 
can be more just than this general reflection ; and nothing, 
as we shall presently see, can be more unjust than the 
application made of it by Mr. Webster. 

He finds an example of this adroit use of language in the 
first resolution of Mr. Calhoun. " The first resolution," 
says he, " declares that the people of the several States 
' acceded ' to the Constitution." As " the natural converse 
of accession is secession/' so Mr. Webster supposes that Cal- 
houn has adroitly, and " not without a well-considered 
purpose," shaped his premises to a foregone conclusion. 
" When it is stated," says he^ '' that the people of the State 
acceded to the "Union, it may be more plausibly argued that 
they may secede from it. If, in adopting the Constitution, 
nothing was done but acceding to a compact, nothing would 
seem necessary, in order to break it up, but to secede from 
the same compact." 

But " this term accede,'* asserts Mr. Webster, " is wholly 

out of place There is more importance than may, 

at first sight, appear in the introduction of this new word 

by the honorable mover of the resolutions." " The 

people of the United States," he continues, " used no such 
form of expression in establishing the present . Govern- 
ment." It is " unconstitutional language." Such 

are a few of the bold, sweeping, and confident assertions of 
"the great expounder of the Constitution." But how 
stands the fact ? Is this really * a new word ;" or is it as 
old as the Constitution itself, and rendered almost obsolete 
at the North by the progress of new ideas and new forms 
of speech? Was it not, in fact, as familiar to the very 
fathers and framers of the Constitution of the United 
States as it afterwards become foreign and strange to the 
ears of its Northern expounders? This is the question; 
and, fortunately, the answer is free from all metaphysical 
refinement, from all logical subtlety, from all curious spec- 



IS DAVIS A TRAITOR f 13 

uiation. For there lies the open record, with this very 
word accede, and this very application of the word, spread 
all over its ample pages in the most abundant profusion. 
No mode of expression is, indeed, more common with the 
fathers and the framers of the Constitution, while speak- 
ing of the act of its adoption, than this very phrase^ " the 
accession of the States." No household word ever fell more 
frequently or more familiarly from their lips. 

Thus in the Convention of 1787, Mr. James Wilson, to 
whose great influence the historian of the Constitution 
ascribes its adoption by the State of Pennsylvania,* pre- 
ferred " a partial union " of the States, " with a door open 
for the accession of the rest," rather than to see their dis- 
position " to confederate anew on better principles " 
eniirely defeated. f "But will the small States," asks 
another member of the same Convention, "in that case, 
accede to it" (the Constitution?) Mr. Gerry, a delegate 
from Massachusetts, was opposed to " a partial confed- 
eracy, leaving other States to accede or not to accede, as 
had been intimated." X Even Mr. Madison, " the father of 
the Constitution," as by way of eminence he has long been 
called, used the expression " to accede " in the Convention 
of 1787, in order to denote the act of adopting "the new 
form of government by the States." § 

In like manner Gouverneur Randolph, who was also a 
member of the Convention of 1787, and who had just 
reported the form of ratification to be used by the State 
of Virginia, said, " That the accession of eight States 
reduced our deliberations to the single question of Union 
or no Union." " If it (the Constitution,") says Patrick 
Henry, " be amended, every State will accede to it." || 
"Does she (Virginia) gain anything from her central posi- 
tion," asks Mr. Grayson, " by acceding to that paper," the 

* Mr. Curtis, vol. i., p. 465. 

t " The Madison Papers," p. 797. 

t Ibid, p. 1101. § Ibid, g. 1103. 

1 1 " Elliott's Debates," vol. iii., p. 652. 



14 IS DAVIS A TRAITOR P 

Constitution ? * "I came hither/' says Mr. Innes, " under 
the persuasion that the felicity of our country required 
that we should accede to this system," f (the new Constitu- 
tion.) " Our new Constitution/' says Franklin, who next 
to Washington was the most illustrious member of the 
Convention of 1787, "is now established with eleven 
States, and the accession of a twelfth is soon expected." | 
And, finally, George Washington himself, who, watching 
the States as one after another adopted the new Constitu- 
tion, says : — " If these, with the States eastward and north- 
ward of us, should accede to the Federal Government," 
&c.§ Thus, while the transaction was passing before their 
eyes the fathers of the Constitution of the United States, 
with the great father of his country at their head, 
described the act by which the new Union was formed as 
"the accession of the States/' using the very expression 
which, in the resolution of Mr. Calhoun, is so vehemently 
condemned as " unconstitutional language," as " a new 
word," invented by the advocates of secession for the vile 
purpose of disunion. 

To these high authorities, may be added that of Chief 
Justice Marshall; who, in his Life of Washington, notes 
the fact, that " Forth Carolina accedes to the Union." || 
This was many months after the new Government had 
gone into operation. Mr. Justice Story, is, in spite of his 
artificial theory of Constitution, a witness to the same fact. 
" The Constitution," says he, " has been ratified by all 

the States ; " " Rhode Island did not accede to it, until 

more than a year after it had been in operation/' just as 
if he had completely forgotten his own theory of the Con- 
stitution.H 

* " The Madison Papers," p. 1099. 

t " Elliot's Debates," vol. iii. 

t " Franklin's \Morks," vol. v., p. 409. 

§ '' The Writings of Washington," vol. ix., p. 280. 

1 1 Vol. v., chap. iii. 

i[ Book iii, chap, xliii. 



IS DAVIS A TEAITORI^ 15 

If it were necessary, this list of authorities for the use 
of the word in question, and for the precise application 
made of it by Mr. Calhoun, might be greatly extended. 
But surely we have seen enough to show how very ill- 
informed was " the great expounder ^' with respect to the 
language of the fathers. Not only John C. Calhoun, but 
Washington, Franklin^ Wilson, King, Morris, Randolph, 
Madison, and all the celebrated names of the great Con- 
vention of 1787, came under the denunciation of this mod- 
ern " expounder of the Constitution." 

There is, as Mr. Webster says, more importance to be 
attached to the word in question than may at first sight 
appear. For if " the States acceded " to the Constitution, 
each acting for itself alone, then was it a voluntary asso- 
ciation of States, from which, according to his own admis- 
sion, any member might secede at pleasure. Accordingly 
this position of the great oracle of the North is echoed and 
re-echoed by all who, since the war began, have written 
against the right of secession. Thus, says one of the most 
faithful of these echoes, Mr. Motley — " The States never 
acceded to the Constitution, and have no power to secede 
from it." It was " ordained and established " over the 
States by a power superior to the States, by the people of 
the whole land in their aggregate capacity.* If, with the 
fathers of the Constitution, in opposition to its modern 
expounder and perverter, he had seen that the new Union 
was formed by an accession of the States, then he would 
have been compelled, on his own principle, to recognise the 
right of secession. For he has truly said, what no one 
ever denied, that " the same power which established the 
Constitution may justly destroy it." \ Hence, if the Con- 
stitution was established by the accession or consent of the 
States, then may the Union be dissolved by a secession of 
the States. This conclusion is, as we have seen, expressly 
admitted by Mr. Webster and Mr. Justice Story. 

* Rebellion Record, vol. ]., p. 211. f Ibid, p. 214. 



16 IS DAVIS A TRAITOR f 

Mr. Webster has well said that a true conclusion may be 
avoided, or a false one reached, by the substitution of one 
word or one phrase for another. This offence, however, has 
been committed, not by Mr. Calhoun^ but by " the great 
expounder " himself. The one has not reached a false, but 
the other has shunned a true conclusion by '' the adroit 
use of language." Instead of saying and believing with 
the authors of the Constitution, that the new Union was 
formed by " an accession of the States," he repudiates both 
the language and the idea, preferring the monstrous heresy 
that it was ordained and established by " the whole people 
of the United States in their aggregate capacity " * or as 
one nation — a heresy which may, with the records of the 
country be dashed into ten thousand atoms. 

I agree with Mr. AYebster, that " words are things, and 
things of mighty influence." It is, no doubt, chiefly owing 
to the influence of language, in connection with the pas- 
sions of men in a numerical majority, that the words and 
views of the fathers became so offensive to the Northern 
expounders of the Constitution. " Words," says the phil- 
osopher of Malmesbury, " are the counters of wise men, but 
the money of fools." To which I may add, if this last 
phrase be true^ as most unquestionably it is, then is there 
scarcely a man on earth with out some touch of folly; for 
all are, more or less, under the influence of words. A far 
greater than either Mirabeau or Hobbes has said that we 
are often led captive by the influence of words, even when 
we think ourselves the most complete masters of them. 
Mr. Webster was himself, as we shall frequently have occa- 
sion to see, a conspicuous instance and illustration of the 
truth of the profound aphorism of Bacon. Of all the dupes 
of his own eloquence, of all the spell-bound captives of his 
own enchantments, he was himself, perhaps, at times the 
most deluded and the most unsuspecting victim. 

When, from his high position in the Senate, Mr. Webster 

*Mr. Webster's Speech of 1830. 



IS DAVIS A TRAITOR f 17 

assured the people of the United States, that it is " uncon- 
stitutional language*' to say "the States acceded to the 
Constitution f he was no doubt religiously believed by the 
great majority of his readers and hearers. He was sup- 
posed to know all about the subject; and was, therefore, 
followed as the great guide of the people. But, as we 
have seen, he was profoundly ignorant of the facts of the 
case, about- which he delivered himself with so much con- 
fidence. The "new word,^' as he called it, was precisely 
fhe, word of the fathers of the Constitution. Hence, if this 
word lays the foundation of secession, as Mr. Webster 
contended it does, that foundation was laid, not by Cal- 
houn, but by the fathers of the Constitution itself, with 
" the father of his country '^ at their head. 

So much for the first link in " the great expounder's " 
argument against the right of secession. His principles 
are right, but his facts are wrong. It is, indeed, his habit 
to make his own facts, and leave those of history to take 
care of themselves. He just puts forth assertions without 
knowing, and apparently without caring, whether they 
are true or otherwise. We shall frequently have occasion 
to notice this utter, this reckless unveracity in " the great 
expounder." 



CHAPTEE IV. 

The first Resolution passed hy the Convention of 1787. 

Mr. Webster lays great stress on the fact, that the first 
resolution passed by the Convention of 1787 declared, "That 
a national government ought to be established, consisting 
of a supreme legislative, judiciary, and executive." But 
the fact only shows that the Convention, when it first met, 
had the desire to establish " a national government," rather 
than a federal one. This resolution was passed before the 
Convention was fully assembled, and by the vote of only 
six States, a minority of the whole number. After the 
members had arrived, and the Convention was full, the 
resolution in question was reconsidered and rescinded. The 
Convention, when filled up, changed the name of their off- 
spring, calling it " the government of the United States." * 
A fraction of the Convention named it, as Mr. Webster 
says; but the whole Convention refused to baptise it with 
that name, and gave it another. Why then resuscitate 
that discarded name, and place it before the reader, as Mr. 
Webster does, in capital letters ? Is it because " words are 
things ; and things of mighty influence f or why persist, as 
Mr. Wehster always does, in calling " the government of the 
United States" a national one? If the Convention had 
called it a national government, this name would have 
been so continually rung in our ears that we could neither 
have listened to the Constitution itself, or to its history, 
whenever these proclaimed its federal character. Nay, 

* The Madison Papers, p. 908. 

[IH] 



IS DAVIS A TRAITOR? 19 

although the Convention positively refused to name it a 
national government, on the avowed ground that it did 
not express their views, yet has this name been eternally 
rung in our ears by the Northern School of politicians, 
and declaimers; just as if it had been adopted, instead of 
having been repudiated and rejected, as it was, by the 
authors of the Constitution. 

In like manner Mr. Justice Story, in his '^ Commentaries, 
on the Constitution," builds an argument on the name 
given to the new government " in the first resolution 
adopted by the convention," without the slightest allusion 
to the fact that this resolution was afterwards reconsid- 
ered, and the name changed to that of " the government of 
the United States." Is this to reason, or merely to deceive ? 
Is this to build on facts, or merely on exploded names ? Is 
this to follow the Convention in its deliberation, or is it to 
falsify its decision ? 

The Convention, by a vote of six States, decided that " a 
national government ought to be established." But when 
this resolution was reconsidered, Mr. Ellsworth " objected 
to the term national government." * and it was rejected. 
The record says : " The first resolution ^ that a national gov- 
ernment ought to be established,' being taken up." .... 
" Mr. Ellsworth, seconded by Mr. Gorham, moves to alter 
it, so as to run that the government of the United States 
ought to consist, &c.. . This alteration he said^ would 
drop the word national, and retain the proper title "the 
United States." f This motion was unanimously adopted 
by the Convention. J That is, they unanimously rejected 
'^the term national government," and yet both Story and 
Webster build an argument on this term just as it had 
been retained by them ! 

The Madison Papers were not published, it is true, when 
the first edition of Story's Commentaries made their 
* Tlie Madison Papers. t I^id, p. 908. t Ibid, p. 909. 



20 IS DAVIS A TRAITOR f 

appearance; but they were published long before subse- 
quent editions of that work. Why, then, was not this gross 
error corrected? Why has it been repeated in every edi- 
tion of the Commentaries in question? Indeed, if Mr. 
Justice Story had desired to ascertain the truth in regard 
to the first resolution of the Convention, he might very 
easily have learned it from " Yates' Minutes,'' which were 
published before the first edition of his Commentaries. 
For, in those Minutes, we find the passage : " Ellsworth. 
I propose, and therefore move, to expunge the word 
" national," in the first resolve^ and to place in the room of 
it, government of the United States, which was agreed to 
nem con/' * Yet, directly in the face of this, Mr. Justice 
Story builds an argument on the word national used in the 
first resolution passed by the Convention ! and, in order to 
give the greater effect to the same argument, Mr. Webster 
prints that rescinded resolution in capital letters ! 

" The name ^ United States of America,' " says the 
younger Story, " is an unfortunate one, and has, doubtless, 
led many minds into error. For it may be said, if the 
States do not form a confederacy, why are they called 
" 'United States?' "f This name is, indeed, a most unfor- 
tunate one for the purpose of his argument, and for that of 
the whole school of politicians to which he belongs. But 
then, as we learn from the journal of the convention of 
1787, it was deliberately chosen by them as the most suit- 
able name for the work of their own hands ; and that too 
in preference to the very name which the whole Northern 
school clings to with such astonishing pertinacity. From 
the same journal, as well as from the other records of the 
countr}^ I shall hereafter produce many other things 
which are equally unfortunate for the grand argument of 
the Story s, the Websters, and the Motleys, of the North. 

* The Madison Papers, p. 908. 

t Tlie American Question, by William H. Story, 

Elliot's Debates, vol. 1., p. 42fl. 



CHAPTEE V. 

The Constitution of 1787 a Compact. 

Was the constitution a compact? Was it a compact 
between the States, or to which the States were the par- 
ties? Was it a compact from which any State might 
recede at pleasure? These three questions are perfectly 
distinct, and all the rules of clear thinking require that 
they should be so held in our minds, instead of being 
mixed up and confounded in our discussions. Yet Mr. 
Justice Story, in his long chapter on the " Nature of the 
Constitution," discusses these questions, not separately 
and distinctly, but all in one confused mass, to the no little 
perplexity and distraction of his own mind. He carries 
them all along together, and in the darkness and confusion 
occasioned by this mode of proceeding, he is frequently 
enabled to elude the force of his adversaries' logic. 

Thus, for instance, he sets out with the fiat denial of the 
doctrine that the Constitution is a compact ; and yet, when 
the evidences become too strong for resistance, or a cloud 
of witnesses rise up to confound him, he turns around,, 
and instead of fairly admitting that the Constitution is a 
compact, asserts that if it is a compact it is not one between 
the States. When too hardly pressed on this position, 
replies, well, if it is a compact between the States it is 
not such a compact that it may be revoked at the pleas- 
ure of the parties. Thus, when he is driven from one 
position he falls back upon another, and finally rallies to- 
a second, a third, and a fourth denial of the main proposi* 

[21] 



22 IS DAVIS A TRAITOR f 

tion that the Constitution is a compact. Now, I intend to 
discuss each one of these questions distinctly and by itself ; 
holding Mr. Justice Story to one and the same precise 
point, until it is either made good or else demolished. I 
hope, in this way, to dispel the mists and fogs he has 
thrown around the subject, and to bring out the truth into 
a clear and unmistakable light. 

The same confusion of thought, and arising from the 
same source, pervades Mr. Webster's celebrated speech of 
Feb. 16, 1833; though it must be admitted, not to the same 
extent that it prevails in the " Commentaries " of Mr. 
Justice Story. Mr. Calhoun very justly complains of this 
want of clearness and precision in the positions of his great 
antagonist. "After a careful examination," says he, " of 
the notes which I took of what the Senator said, I am 
now at a loss to know whether, in the opinion of the Sen- 
ator, our Constitution is a compact or not, though the 
almost entire argument of the Senator was directed to 
that point. At one time he would seem to deny directly 
and positively that it was a compact, while at another he 
would appear, in language not less strong, to admit that it 
was.'' * 

Mr. Webster emphatically and repeatedly denies both 
that a Constitution is a compact and also that a compact is 
a Constitution; or, in other words, he conceives that the 
natures of the two things are utterly incompatible with 
each other. 

He is very bold^ and asserts that it is new language to 
call *^ the Constitution a compact." 

" This is the reason," says he, " which makes it necessary 
to abandon the use of Constitutional language for a new 
vocabulary, and to substitute, in place of plain historical 
facts, a series of assumptions. This is the reason why it 
is necessary, to give new names to things, to speak of the 
Constitution, not as a Constitution, but as a compact, and 

• Mr. Calhoun's speech, Feb. 26, 1833. 



IS DAVIS A TRAITOR? 23 

of the ratifications of the people not as ratifications, but as 
acts of accession." * Again, he complains of Mr. Calhonn, 
that '' he introduces a new word of his own, viz., ' compact,' 
as importing the principal idea^ and designed to play the 
principal part, and degrades Constitution into an insignifi- 
cant idle epithet attached to compact. The whole then 
stands a Constitutional compact !" He is then particularly 
severe and eloquent upon the supposed outrage perpe- 
trated on " our American political grammar," in thus de- 
grading '^ CONSTITUTION " (the capitals are his own) from 
its rightful rank " as a noun substantive." But, after all, the 
plain, simple fact is, that this " new word," as Mr. Webster 
calls it, was as familiar to the ears of the authors of the 
Constitution as any other in the vocabulary of the great 
Convention of 1787. The terms Constitution and com- 
pact are, indeed, twin words, and convertible in the lan- 
guage of the fathers. 

Though "the term Constitutional affixes to the word 
compact no definite idea," says Mr. Webster, and in such 
connection " is void of all meaning," " yet it is easy, quite 
easy, to see why the gentleman uses it in these resolutions." 
Now, what is the reason, the deep design, that induces Mr. 
Calhoun to use an epithet " so void of all meaning ?" " He 
cannot open the book ;" says Mr. Webster, " and look upon 
our written frame of government without seeing that it is 
called a Constitution. This may well be appalling to him." 
We cannot possibly imagine that Mr. Calhoun should, for 
one moment, have been disturbed or alarmed by such a 
discovery or revelation. It is certain that he nowhere 
betrays the least symptom of dismay at "the appalling" 
consideration that the Constitution is really a Constitu- 
tion. That " noun substantive " seems to have inspired 
him with no sort of terror whatever. On the contrary, 
it appears to sit as easily on his political faith and to flow 
as familiarly from his lips as any other word in the lan- 
~^ Speech, Feb. 16, 1833. 



24 IS DAVIS A TRAITOR? 

guage. We can imagine, however, why the Northern 
States should wish to get rid of both the idea of a compact 
and of the word; why the powerful should wish to oblit- 
erate and erase from the tablets of their memory every 
recollection and vestige of the solemn compact or bargain 
into which they had entered with the weak, but which 
they have never observed in good faith. 

It is perfecty certain that Mr. Webster's horror of the 
term compact, as applied to the Constitution, is of com- 
paratively recent origin. It was wholly unknown fo the 
fathers of the Constitution themselves. Mr. Gouverneur 
Morris, it is well known, was one of the most celebrated 
advocates for a strong national government in the Con- 
vention of 1787; and yet, in that assembly, he used the 
words — " He came here to form a compact for the good of 
America. He was ready to do so with all the States. He 
hoped and believed that all would enter into such a com- 
pact. If they would not, he would be ready to join with 
any States that would. But as the compact was to be vol- 
untary, it is in vain for the Eastern States to insist on 
what the Southern States will never agree to." * Thus, 
this celebrated representative of the State of Pennsylva- 
nia, and staunch advocate of a strong national government, 
did not hesitate to call the Constitution a compact into 
which the States were to enter. Indeed, no one, at that 
early day, either before the Constitution was adopted or 
afterwards, hesitated to call it a compact. 

Mr. Gerry, the representative of Massachusetts, says, 
" If nine out of thirteen (States) can dissolve the compact, 
six out of nine will be just as able to dissolve the new one 
hereafter." Here again the new Constitution is called a 
compact. 

" In the case of a union of people under one Constitu- 
tion," says Mr. Madison, while contending for the ratifica- 
tion of the new Constitution by the people, " the nature of 

* " Madison Papers," p. 1081-2. 



IS DAVIS A TRAITOR? 25 

the pact has always been understood to exclude such an 
interpretation/'* Thus, in the Convention of 1787, Mr. 
Madison called the Constitution a compact; a word which 
he continued to apply to it during the whole course of his 
life. 

In the celebrated resolutions of Virginia, in 1798, Mr. 
Madison used these words, " That this assembly doth 
explicitly and peremptorily declare, that it views the 
powers of the Federal Government as resulting from the 
compact, to which the States are parties." Again, in his 
almost equally celebrated letter to Mr. Everett, in 1830, he 
calls " the Constitution '' " a compact among the States in 
their highest sovereign capacity." In the same letter Mr. 
Madison speaks of the States as "the parties to the Con- 
stitutional compact ; " using the very expression which is so 
offensive to Mr. Webster's new " political grammar." 
iSTay, it was only three years before, in the great debate 
on Foot's resolutions, that Mr. Webster himself had, like 
every one else, spoken of the Constitution as a compact, as 
a bargain which was obligatory on the parties to it. " It 
is the original bargain," says he, in that debate ; " the com- 
pact — let it stand ; let the advantage of it be fully enjoyed. 
The Union itself is too full of benefits to be hazarded in 
propositions for changing its original basis. I go for the 
Constitution as it is, and for the Union as it is." Nor is 
this all. He there indignantly repels, both for "himself 
and for the North," " accusations which impute to us a 
disposition to evade the Constitutional compact." Yet, in 
the course of three short years, he discovers that there is 
no compact to be evaded and no bargain to be violated ! 
All such trammels are given to the winds, and Behemoth 
is free ! How sudden and how wonderful this revolution 
in the views and in the vocabulary of the great orator of 
New England If 

* Madison Papers, p. 1184. 

t The great mind of Mr. Webster was in general more like the 



26 IS DAVIS A TRAITOR? 

This language, in which the Constitution is called a com- 
pact, is not confined to Morris, and Gerry, and Madison, 
and the Webster of 1830. Mr! Chief Justice Jay, of the 
Supreme Court of the Union, in the case of " Chisholm vs. 
State of Georgia," expressly declares that "the Constitu- 
tion of the United States is a compact." f " Our Constitu- 
tion of the United States," says John Quincy Adams, the 
sixth President of the Eepublic, " and all our State Consti- 
tutions, have been voluntary compacts, deriving all their 
authority from the free consent of the parties to them." 
The Virginia Eesolutions of 1798, already referred to as 
expressing the opinion of Mr. Madison, assert that " Vir- 
ginia views the powers of the Federal Government as 
resulting from the compact to which the States are par- 
ties." Again, in the Virginia Report of 1800, it is said, 
" The States being parties to the Constitutional compact," 
&c. Edmund Pendleton, President of the ratifying Con- 
vention of Virginia, in 1788, in the course of his argument 
in favor of the new Constitution, says, " This is the only 
Government founded in real compact." J Judge Tucker, 
in his commentaries on Blackstone, repeatedly calls the 
Constitution in question " a compact between the States " 
of the Union. The third President of the United States, 

ocean in repose than in action; and, as is well kno\\Ti, his habitual 
indolence often induced him to rely on others for political in- 
formation. No one who will attentively compare his speech of 
1833 with book III., chap. 3, of Story's " Oommtentaries on the 
Constitution," can be at any loss to account for the origin of his 
" new political grammar," his " new rules of syntax," and his 
" new vocabularV' •" If he applies these epithets to the doctrines 
of Morris, and Gerry, and Madison, it is because old things have 
become new with him, and new things old. The secret of this 
revolution will be found, as we shall soon prove, in the work of 
Mr. Justice Story, which work was not written in 1830. Indeed 
it was not published until 1833; but then the first volume, con- 
taining book III., chap. 3, was prepared, if not printed, before the 
speech of Mr. Webster, with whom the author was on the most 
intimate terms. It would have been well for the fame of Webster, 
in the eve of posterity, if he had more carefully examined such a 
question for himself. 
t3 Ball. R. p. 419. J Elliot's Debates, vol. iii., p. 57. 



IS DAVIS A TRAITOR? 27 

as well as the sixth, Thomas Jefferson as well as John 
Quincy Adams, considered the Constitution " a compact." 
" The States," says Jefferson, " entered into a compact, 
which is called the Constitution of the United States.* 
The Convention of Massachusetts, which was called to 
ratify the Constitution of the United States, was, if possi- 
ble, still more emphatic and decided in the expression of 
the same opinion. " Having impartially discussed, and 
fully considered," say they, " the Constitution of the United 
States of America," we acknowledge, "with grateful 
hearts, the goodness of the Supreme Euler of the Universe 
in affording the people of the United States an opportu- 
nity, deliberately and peaceably, without fraud and sur- 
prise, of entering into an explicit and solemn compact with 
each other, by assenting to and ratifying a new Constitu- 
tion," &c. Yet, in the face of all these high authorities, 
and of a hundred more that inight be easily adduced, run- 
ning from James Madison in the Convention of 1787 to 
Daniel Webster in the great debate of 1830, and embracing 
the lights of all sections and of all parties, it is asserted by 
this celebrated statesman, though certainly not as a states- 
man, that the term compact, as applied to the Constitu- 
tion, is " a new word," is a part and parcel of " the uncon- 
stitutional language," of the " new vocabulary," which has 
been invented to obscure the fundamental principles of the 
Government of the United States, and to justify secession ! 
Can posterity admire such an exhibition of his powers ! 
So far, indeed, is this from being a new mode of speech, 
that it is one of the most familiar words known to the 
fathers of the Constitution itself, or to its more early 
expounders. Even the Federalist, in submitting the Con- 
stitution to the people, sets it before them as " the com- 
pact."! " The man," says Mr. "Webster, " is almost untrue 
to his country who calls the Constitution a compact." It 

* Correspondence. Vol. iv., p. 415, 
t No. xxxix. 



28 IS DAVIS A TRAITOR? 

were, indeed, much nearer the truth to say that the man 
is not only almost but altogether untrue to himself, as well 
as to the most solemn records of his country, who can 
assert that the term compact, as applied to the Constitu- 
tion, is ^' a new word,'' or the exponent of a new idea. 

The arguments of Mr. AVebster to prove that the Con- 
stitution is not a compact, are, if possible, as unfortunate 
as his assertions. If words be not things in reality, as 
well as in effect, then it will be found that his arguments 
possess an exceedingly small value. There are two words, 
in particular, in the use of which he displays far more of 
rhetorical legerdemain than of rigid logic. These are the 
two words " compact " and "Constitution.'' 

No one pretends for a moment, that every compact is a 
Constitution. There are compacts about soap and candles, 
about pepper and calicoes^ or some such trifling thing, 
which no one would call a Constitution. It is only when 
a compact has for its object the institution or organiza- 
tion of a political society, or a civil government, that it is 
properly denominated a Constitution. Hence, in the ordi- 
nary acceptation of the words, compact falls far below the 
high-sounding noun substantive Constitution; a circum- 
stance of which any rhetorician may, if he choose, very 
easily avail himself. Mr. Webster has done so, and that, 
too, with no little popular effect. " AYe know no more of a 
Constitutional compact between sovereign powers,^' says 
he, " than we do of a Constitutional indenture of partner- 
ship, a Constitutional deed of conveyance, or a Constitu- 
tional bill of exchange. But we know what the Constitu- 
tion is," &c. Perhaps we do, and perhaps we do not ; that 
is the very point in dispute. But certain it is, that if we 
do know what the Constitution is we need not seek to illus- 
trate its nature or to exhibit its history by any such decep- 
tive use of words. Akin to this sort of reasoning, or rhet- 
oric, is all that is said by Mr. Webster and Mr. Justice 
Storv about lowerinjr the Constitution bv considerinir it as 



IS DAVIS A TRAITOR? 29 

a " mere compact," or as '' nothing but a compact." It is, 
indeed, something more than a compact, something more 
high, and holy, and honorable. Though in its nature it is 
a mere compact, yet in its object, which is no less than 'to 
institute or organize a political society, it is the most 
solemn and sacred of all earthly transactions. Such com- 
pacts should not be despised, nor should they be explained 
away, or trampled under foot by the powerful ; they involve 
the destiny of millions. 



CHAPTER VL 

The Constitution of 1787 a Compact. 

"A Constitution/' says Mr. Webster, " is certainly not a 
league, compact, or confederation, but a fundamental law. 

Do we need to be informed in this country what a 

Constitution is ? Is it not an idea perfectly familiar, defi- 
nite and well settled? We are at no loss to understand 
what is meant by the Constitution of one of the States; 
and the Constitution of the United States speaks of itself 
as being an instrument of the same nature." Now it is a 
very remarkable fact that Alexander Hamilton was just as 
clearly and decidedly of opinion that the Constitution of a 
State is a compact, as Mr. Webster was of the opposite 
notion. Thus, saj^s he, in relation to the Constitution of 
New York, " The Constitution is the compact made 
between the society at large and each individual. The 
society, therefore, cannot without breach of faith and 
injustice, refuse to any individual a single advantage which 
he derives under the compact, no more than one man can 
refuse to perform an agreement with another. If the com- 
munity have good reason for abrogating the old compact 
and establishing a new one it undoubtedly has a right to 
do it; but until the compact is dissolved with the same 
solemnity and certainty with which it was made, the 
society, as well as individuals, are bound by it."* Indeed, 
this idea, that the Constitution of an American State is a 
compact, made and entered into, was far more familiar to 

* Hamilton's Works, vol. ii., p. 322. 
[80] 



IS DAVIS A TRAITOR? 31 

Alexander Hamilton and to his age — the age of the Con- 
stitution itself — than the contrary notion was to Mr. Web- 
ster and to his school. 

The Constitution of Massachusetts not only calls itself a 
compact, but the people therein acknowledge, with grate- 
ful hearts, that Providence has afforded them an opportu- 
nity of entering into this " original, explicit, and solemn 
compact.^' The same State, as we have seen, in her ordi- 
nance of ratification, makes the same acknowledgment of 
the goodness of the Supreme Euler of the Universe for 
affording the people of the United States an opportunity 
of entering into " an explicit and solmen compact by 
assenting to, and ratifying a new Constitution.'* Now, 
both Story and Webster lay great stress on the fact that 
the Constitution of the United States does not call itself a 
compact. But here they have a Constituion, and it is that 
of their own State, which calls itself an explicit and solemn 
compact — and how do they receive this language? There 
is not, perhaps in all literature an attempt more awkward, 
or a failure more signal, to explain away the clear and 
unequivacal language of a written instrument, than it here 
exhibited by these two great sophists. It deserves a most 
especial notice. 

Mr. Justice Story first gets away from the plain language 
of the instrument, and then calls around him the darkness 
of one of the very darkest metaphysical theories of Europe, 
which he introduces to our notice, however, by a very just 
remark. "Mr. Justice Blackstone," says he, "has very 
justly observed that the theory of an original contract 
upon the first formation of society is a visionary notion." 
Granted ; but what has this to do with the Constitution of 
Massachusetts? Every Constitution we admit is not a 
compact, any more than every compact is a Constitution. 
Most Constitutions have indeed grown, and only a few in 
these later ages of the world have been made. It has been 
the boast of America, and of Virginia especially, that she 



32 IS DAVIS A TRAITOR? 

was the first in tlie liistory of manlvind to make a complete 
Constitution, to reduce it to writing, and, in the name of 
the people in Convention assembled, to adopt and sign it 
for the government of themselves and their posterity. By 
those authors, such as Blackstone, and Paley, and Hume, 
who reject the theory of an original contract as " a vision- 
ary notion," as having no foundation in history or in fact, 
it is not denied, but expressly admitted, that a people 
might, if they chose, enter into such a compact. Paley, in 
spite of his opposition to the theory of the social compact, 
admits that something of the kind has been entered into in 
America. " The present age has," says he, " been witness 
to a transaction which bears the nearest resemblance to 
this political idea (that of an original compact) of any of 
which history has preserved the account or memory. T 
refer to the establishment of the United States of North 
America. We saw the people assembled to elect deputies 
for the avow^ed purpose of framing the Constitution of a 
new empire. We saw this deputation of the people delib- 
erating and resolving upon a form of government, erecting 
a permanent legislature, distributing the functions of sov- 
ereignty, establishing and promulgating a code of funda- 
mental ordinances which were to be considered by suc- 
ceeding generations, not merely as acts and laws of the 
State, but as the very terms and conditions of the Confed- 
eration." Indeed, Paley does not doubt that it was a com- 
pact; he only seems to question whether it may be called 
original, since " much was pre-supposed." For, " in settling 
the Constitution," says he, "many important parts were 
presumed to be already settled. The qualifications of the 
constituents who were admitted to vote in the election of 
members of Congress, as well as the modes of electing the 
representatives, were taken from the old forms of govern- 
ment." It is true that, in framing the Constitution of the 
Federal Union, these things were adopted from the State 
Governments; but if this prevented the compact from 



IS DAVIS A TRAITOR? 33 

being original it certainly did not keep it from being a 
compact. In fact, these words of Paley refer to the old 
Articles of Confederation, and not to the new Constitu- 
tion, for they were written and published in 1785*, two 
years before the Convention met to frame this new instru- 
ment or plan of government. Both Webster and Story, 
like all others, admit that the old Articles of Confederation 
were " a compact between the States." 

The question is, whether the Constitution of Massachu- 
setts is an instrument of the same nature, or, in other 
words^ whether it is a compact? The more than doubtful 
metaphysical theories of Europe have nothing to do with 
this question. The darkness of those theories is not per- 
mitted either by Webster or Story to obliterate or obscure 
the fact that the Articles of Confederation, or the Constitu- 
tion to which Paley refers, was a compact. Why, then, 
is it brought to bear on the Constitution of Massachusetts ? 
Is the political history of this country, so widely and so 
amazingly different from that of all others, to be read 
and interpreted in the light, or rather in the darkness, of 
those vague and visionary theories respecting the origin of 
the governments of the Old World which have not the least 
semblance nor shadow of a foundation in their respective 
histories? The Constitution of Great Britain, for exam- 
ple, has grown; the Constitution of Massachusetts was 
made. The one is the slow but mighty product of the 
labor of ages ; the other is the creation of yesterday. The 
one is written ; the other is traditional. The most impor- 
tant and beneficent elements of the one resulted from the 
Norman Conquest, and the gradual rise of the lower orders 
in cultivation, in wealth, and in importance. Every pro- 
vision of the other, without a single exception, was framed 
and adopted by the people of Massachusetts in Conven- 
tion assembled. Hence the more than doubtful theories 
respecting the origin and the nature of the one have noth- 

* See Paley's Life, attached to his works, p. 13. 



34 IS DAVIS A TRAITOR? 

ing to do with the interpretation of the plain and un« 
questionable facts of the other. These facts should be 
allowed to speak for themselves, and not to be dis- 
credited or obscured by involving them in the fate of 
any doubtful or false hypothesis whatever. 

Nor is this all. As there is not the slightest foundation 
in history for the theory of an original contract in rela- 
tion to the governments of Europe, so theorists have been 
forced to adopt the hypothesis of an " implied compact " as 
constituting at once the origin, the basis, and the binding 
authority of civil society. Mr. Justice Story finds this 
idea of an " implied " contract, or consent, in Blackstone ;* 
and he does not hesitate to assert that it is in this sense 
that the Constitution of Massachusetts calls itself a com- 
pact. According to this hypothesis the consent of every 
subject is implied, and this implication is forced upon the 
unwilling. It is an implied consent, even in spite of an 
actual dissent. Did the people of Massachusetts then 
acknowledge, with grateful hearts, that Providence had 
afforded them an opportunity of entering into an "im- 
plied " compact ? Did they thus pour forth in their Con- 
stitution devout thanks for a privilege which they could 
not possibly have avoided, and which has been fully 
enjoyed by every subject of every despotic government in 
the world? Did they thank the Supreme Ruler of the 
Universe for an opportunity of entering into a forced 
implication, and yet ignorant of their bonds, most foolishly 
style it an " original, explicit, and solemn compact ?" 
If we may believe Mr. Justice Story, such was precisely 
the absurd and ridiculous farce enacted by the people of 
Massachusetts. 

Mr. Webster treE^ds in the footsteps of Mr. Justice Story. 
*' The Convention," says the Massachusetts formula of 
ratification, "having impartially examined and fully con- 
sidered the Constitution of the United States of America, 

*" Commentaries," vol. i.. Book 111., chap, iii., p. 298. 



IS DAVIS A TRAITOR? 35 

.... submitted to us and acknowledging with grateful 

hearts the goodness of the Supreme Ruler of the Universe 
in affording the people of the United States, in the course 
of His providence, an opportunity, deliberately and peace- 
ably, without fraud or surprise, of entering into an explicit 
and solemn compact with each other, by assenting to and 
ratifying a new Constitution," &c. Now is this the lan- 
guage of an implied or of an explicit and deliberate com- 
pact? Yet in the face of this language Mr. Webster 
asserts that the Convention of Massachusetts and New 
Hampshire merely speak of compact in the sense of " Euro- 
pean writers ! " Now, the European writers here referred 
to mean either an explicit or an implied consent. But the 
idea of an explicit consent or compact is rejected by Mr. 
Justice Story and Mr. Webster, as "' a visionary notion," as 
well as by Blackstone, Hume, Paley, and a host of others. 
Hence Mr. Webster must be understood to refer to those 
European writers who maintain the hypothesis of an 
implied compact. Hence the people of Massachusetts are 
represented by him as being exceedingly grateful for the 
opportunity of freely and deliberately entering into an 
" implied compact," which, however, they blindly call " an 
explicit and solemn " one ! They are represented as vol- 
untarily entering into an implied compact, a thing which 
is never made or entered into at all, but is only an impli- 
cation or fiction of law, from which there is no escape ! 

The Constitution, says Mr. Webster, is " certainly not a 
compact." He lays great stress on the fact that it does 
not call itself a compact. Nor do the old Articles of Con- 
federation call themselves a compact; and yet Mr. Web- 
ster admits that they were "a compact between the 
States." They call themselves, it is true, "a league of 
friendship ;" but then a league of friendship is not, ex vi ter- 
mini, a social compact or a political union. " We speak of 
ordaining Constitutions," says Mr. Webster; '^but we da 
not speak of ordaining leagues and compacts." True^ 



36 IS DAVIS A TRAITOR? 

because our language is determined by the ordinary and 
more frequent transactions of society. Hence we nat- 
urally speak of making or entering into leagues and com- 
pacts in conformity with the every-day use of language. 
But when compacts relate to the institution of a new gov- 
ernment, and when all their terms and articles and stipu- 
lations are agreed upon, then we enter into them by 
ordaining them as Constitutions. Is not this so? 

Every compact is not a Constitution. But the Articles 
of Confederation, which are admitted to be a compact, 
were a Constitution. This is clear from Mr. Webster's 
own definition. " ^Yhat is a Constitution ?" says he ; and 
he replies, it is " a fundamental law." Now, most assuredly 
the articles in question constituted the "fundamen- 
tal law " of the old Union. They are, as we have already 
seen, very properly called by Dr. Paley " a code of funda- 
mental ordinances, which were to be considered by suc- 
ceeding generations not merely as laws and acts "...." but 
as limitations of power, which were to control and regu- 
late the future legislation." This is, indeed, the definition 
of a Constitution ; and hence Dr. Paley calls those " terms 
and conditions of the Confederation " a " Constitution." 

But on this point there is much higher authority than 
that of Dr. Paley. The "Address of the Annapolis Con- 
vention," penned, as is well known, by Alexander Hamil- 
ton, recommends commissioners to meet at Philadelphia, 
"to take into consideration the condition of the United 
States, and to devise such further provisions as shall 
appear to them necessary to render the Constitution of the 
Federal government adequate to the exigencies of the 
Union." * Again, he says, in the ratifying convention of 
New York, ^ The Confederation was framed amidst the 
agitation and tumult of society. It was composed of 
unsound materials put together in haste. Men of intelli- 
gence discovered the feebleness of the structure in the 

* " Hamilton's Works," vol. ii., p. 339. 



IS DAVIS A TRAITOR? 37 

first stages of its existence; but the great body of the 
people^ too much engrossed with their distresses to con- 
template any but the immediate causes of them, were 
ignorant of the defects of their constitution.'' * Mr. Madi- 
son also speaks of " the Federal Constitution '^ under the 
old Confederation.! 

" The Constitution/' says Mr. Webster, " speaks of that 
political system which is established as 'the government 
of the United States.' Is it not doing strange violence to 
language to call a league or compact between sovereign 
powers a government ? " Is it not, I reply, requiring too 
much of a compact to be both the Constitution and the 
government? No one pretends that either a compact or 
the Constitution is the government of the United States. 
Mr. Webster himself makes the distinction in the two 
next sentences. " The government of a state," says he, 
" is that organization in which the political power resides. 
It is the political being created by the Constitution or 
fundamental law." Thus the government is created by 
the Constitution; and if a compact were both Constitu- 
tion and government, then the creature would be its own 
creator. All I contend for * is, that in this particular 
case the compact is a Constitution, and the Constitution 
is a compact. Neither the one nor the other is the gov- 
ernment. The Constitution is neither the executive, nor 
the legislature, nor the judiciary, nor any other conceiv- 
able functionary of the government of which it is the 
supreme law. 

But the design of Mr. Webster's argument is to prove 
that no government was established by the old articles of 
Union, or under the compact of the Confederation. In 
designating those powers which he deems essential to the 
very existence of a government^ he specifies those which 

* Hamilton's Works, vol. ii., p. 445. 

t " Madison Papers." Index, exi., " Convention to revise the 
Federal Constitution. 587, 617, 619." 



38 IS DAVIS A TRAITOR? 

did not belong to the legislature of the Confederacy, or 
which he supposes did not belong to it ; and then he adds, 
" when it ceases to possess this power it is no longer a 
government,^' and consequently it is doing strange violence 
to language to call it one. 

"We have already seen that Alexander Hamilton, in 
speaking of the Confederacy, calls it the " Federal govern- 
ment." " We saw the deputation of the people," says Dr. 
Paley, " deliberating and resolving upon a form of govern- 
ment, erecting a public legislature, distributing the func- 
tions of sovereignty, establishing and promulgating a code 
of fundamental ordinances." We cannot open " Curtis'.i 
History of the Constitution," and turn to the appropriate 
heads, without seeing that he discusses the ^' Nature of the 
government established by the Confederation " * or the 
form of the government established by it;"t or without 
perceiving that the same thing is habitually and familiarly 
called a government. Nor can we look into the comment- 
aries of Mr. Justice Story, and cast our eyes over the 
pages in which he treats of the first Confederation, with- 
out discovering that he frequently speaks of the " general 
government," J or the " national government " § established 
by it. In the very first sentence of "" The Federalist ," as 
well as in various other sentences of the same work, "the 
existing Federal government " is spoken of just as if no 
one entertained a doubt as to its real nature or its name. 

* Vol. i., chap, vi., p. 142. 

t Ibid, p. 143. 

tVol. i., Book II., chap, i., p. 180; Book III., chap, ii., p. 280. 

§* Ibid, Book III., chap, ii., p. 260. 



CHAPTER VII. 

The Constitution of 1787 a Compact. 

Mr. Webster admits that the Constitution is " founded 
on consent or agreement, or on compact ;" meaning no more 
by that word than " voluntary consent or agreement." 
But he denies that it is itself a compact. " The Constitu- 
tion is not a contract," says he, " but the result of a con- 
tract ; meaning no more by contract than assent. Founded 
on consent it is a government proper." Now, Mr. Web- 
ster himself being the judge, the Constitution is not a gov- 
ernment at all ; for a government is, says he, " the political 
being created by the Constitution or fundamental law." 
But " founded on consent," not on implied or necessitated, 
but on " voluntary consent," it is a compact proper. Mr. 
Webster is compelled to call the Constitution a govern- 
ment in direct violation of his own definitions and princi- 
ples, in order to keep from calling it a compact. 

In what manner the Constitution is founded on consent, 
on a deliberate and voluntary consent, Mr. Webster has 
himself told us, only a few pages in advance of the above 
admission. " It is to be remarked," says he, " that the 
Constitution began to speak only after its adoption. Until 
it was ratified by nine States it was but a proposal, the 
mere draft of an instrument. It was like a deed drawn 
but not executed." This is most exactly and perfectly 
true. The Constitution was a dead letter, a powerless and 
inoperative thing, until the ratification or solmen " volun- 
tary assent " of nine States breathed into it the breath of 

[39J 



40 IS DAVIS A TRAITOR i' 

life. It was from this consent^ from this compact of nine 
States, that " the Constitution resulted " as a living or 
an authoritative document. But when the nine States 
assented to that " proposal or mere draft of an instru- 
ment/' and ratified the same by signing it, then each and 
every article therein specified and written became an arti- 
cle of agreement between the parties to it. " It was like 
a deed drawn but not executed." But when executed or 
ratified it was -then like a deed signed by the parties ; and 
all the written articles thereof became articles of agree- 
ment between the parties. Thus the Constitution not 
only resulted from the compact of the nine States, but 
became itself the compact; or in other words, the written 
expression of the terms, the conditions, and the articles 
of the compact. This is what we mean by calling the 
Constitution a compact between the States. And is not 
this the language of truth? 

Now, on what conditions, or in what cases, does such 
voluntary consent become a compact proper? Each of 
the nine States, as it assented to and ratified the Constitu- 
tion, agreed to all its terms and articles. It agreed to 
forego the exercise of various powers, and to assume various 
important liabilities, in consideration that eight other 
States would do precisely the same thing. And it also 
agreed that the poAvers thus delegated by the nine States, 
or conferred on the general government to be erected for 
the common good, should be distributed, exercised, limit- 
ed, and controlled, according to the terms and articles 
of the Constitution. Is not this a compact proper? Have 
we not here mutual promises, each State parting with 
what it possessed, and, in consideration thereof, seeldng 
to derive some benefit from the others? If so, then is not 
this a compact in the proper sense of the word ? 

The same idea is perfectly expressed by Mr. \Yebster, 
in the speech before us. " On entering into the Union," 
says he, " the people of each State gave up a part of their 



IS DAVIS A TRAITOR? 41 

own power to make laws for themselves, in consideration 
that, as to common objects, they should have a part in 
making laws for other States/^ Here is the voluntary 
relinquishment on the one part, and the valuable consider- 
ation on the other. Is not this a contract proper ? If not, 
then have Blackstone, and Kent, and Pothier, and Domat, 
and Story written in vain on the nature and law of con- 
tracts. If not, then indeed may we despair of ever arriv- 
ing at the meaning of any one word in any one language 
under the sun. 

It possesses every conceivable attribute of a valid con- 
tract. 1. There were "the parties capable of contract- 
ing ^^ — the States. 2. It is admitted to have been " volun- 
tary." 3. There was " the sufficient consideration " — the 
powers surrendered, and the liabilities incurred. Thus it 
fully answers to every condition laid down by Judge 
Story himself,* as the tests or criteria of a contract proper. 
It bears no resemblance to those imaginary transactions 
which certain European writers have invented to explain 
the origin of their governments, and to give stability to 
their political theories by fastening them, as with anchors, 
to past ages. On the contrary, it is historical and real. 
The time and the manner, the substance and the form, and 
all the stipulations, are written down and Iniown. It was 
deliberately and solemnly entered into yesterday; and it 
is as deliberately and solemnly denied to-day. Such is the 
incurable sophistry of power ! 

The constitution of England is not a compact. There 
is not, in all the history of England, the least intimation 
of the people's having assembled, either by themselves or 
by their representatives, to establish the institution of 
King, or Lords, or Commons. Yet these three powers 
constitute the main features in the government of Great 
Britain. Each power holding the balance between the 
other two, so as to prevent either from gaining the ascend- 

* Conflict of Laws, p. 307. 4 



42 IS DAVIS A TRAITOR? 

ancy, is what forms the stable equilibrium of the constitu- 
tion of England. But yet certain parts of the British con- 
stitution are compacts^ and are so called by writers who 
reject the theory of a compact as to the whole. According 
to De Lolme and other authors. Great Britain owes her 
admirable constitution to the Norman conquest rather than 
to compact. " It is to the era of the conquest/' says he, 
" that we are to look for the real foundation of the English 
constitution." Yet changes and improvements in that 
constitution which, instead of growing, were made by 
competent parties, he calls compacts. Thus, says he, in 
reference to the accession of William III. to the throne, 
" care was taken to repair the breaches which had been 
made in the constitution, as well as to prevent new ones, 
and advantage was taken of the rare opportunity of enter- 
ing into an original and express compact between king 
and people." * Then, after having specified some of the 
improvements made in the constitution by this compact, 
he adds, " Lastly, the keystone was put to the arch by the 
final establishment of the liberty of the press. The Eevo- 
lution of 1689 is, therefore, the third grand era in the his- 
tory of the constitution of England." Again, he says, 
" Without mentioning the compacts which were made with 
the first Kings of the Norman line, let us only cast our 
eyes on Magna Charta, which is still the foundation of 
English liberty, f being the great compact by which the 
Kings, the barons, and the people J entered into certain 
mutual stipulations respecting the prerogatives of the 
Crown and the rights of the subject." 

Thus the English revolution, like our own, was followed 
by a compact; and the only difference was that the com- 
pact of 1688 was in addition to an old constitution, whereas 
the compact of 1788 was a constitution in toto coelo. 

* De Lolme on the Constitution, p. 48. f Ibid, p. 287. 

t I say the people, becau!-o those who followed the barons at 
Runnymede demanded and obtained stipulations in favor of the 
people as well as in favor of their leaders. 



IS DAVIS A TRAITOR? 43 

Locke, the great popular champion of the theory of the 
social compact, was then in the ascendant in the United 
States, as he was with the Whigs in England. That 
theory, though exploded now, was then almost universally 
received in America. That is to say, exploded by showing 
that there is no historical evidence of any such compact at 
the origin of the governments of the Old World, and that 
the alleged transaction was fictitious.* But the fiction, 
which had been only partially realized at the end of revo- 
lutions, and not at the beginning of societies, became a 
fact in the hands of American legislators. In the language 
of Gouverneur Morris, they came to the convention of 1787 
" to make a compact," and they made one. But this draft 
of a compact, we are told, calls itself a constitution, and 
not a compact at all. Very well. Suppose it had called 
itself a compact, even an " original, explicit, and solemn 
compact," would it not have been just as easy for Mr. 
Justice Story to affirm that this only meant an " implied 
contract," as it was for him to do the same thing in regard 
to the Constitution of Massachusetts? But although the 
convention of 1787 did not, on the very face of the Consti- 
tution, call itself a compact, yet in the letter which, by 
their " unanimous order," was dispatched with that instru- 
ment to the President of Congress, they use the same lan- 
guage in describing the nature of the transaction, that is 

* This is the ground taken, and unanswerably maintained by 
Hume, in his essay on the "' Original Contract." " Eissays," vol. i.. 
Essay 12. The theory of Rousseau is rejected by M. Comt€ 
("Theorie de Legislation," liv. i. c. 2.) on the same ground. Sir 
William Templet { " Wlorks," vol. ii. pp. 37, 46 ) had previously 
rejected the doctrine of the " Social Contract." Kant, the philos- 
opher of Konigsberg, treats it as a frivolous and impractical 
notion. Heeiren ("On Political Theories," p. 239) says that a 
social contract neither was, nor could have been, actually con- 
cluded. Stahl ("Philosophy of Rights," vol. ii., part ii., p. 142) 
rejects the doctrine as visionary. Godwin, likewise ("Political 
Justice," book iii., c. 2 and 3) rejects it. The doctrine of the 
social compact is subjected to an exhaustive analysis by Mr. 
Austin (" Prov. of Jurisprudence," 331 — ^71), and triumphantly 
refuted. Jeremy Bentham likewise rejects the same hypothesis 
as visionary. 



44 IS DAVIS A TRAITOR? 

employed by Sidney, and Locke, and Eonsseau to define 
" the social contract/' as we shall hereafter see. 

Although Mr. Justice Story endeavors to bring discredit 
on the " explicit and solemn " compacts of the New World, 
by identifying them with the vague and visionary theories 
of the Old, yet he is perfectly aware of the difference 
between the fact in the one case and the hypothesis in the 
other, whenever it suits his purpose to use such knowl- 
edge. Thus, he says, in relation to his own Pilgrim 
Fathers : — " Before their landing they drew up and signed 
a voluntary compact of government, forming, if not the 
first, at least the best authenticated case of an original 
social contract for the establishment of a nation, which is 
to be found in the annals of the world. Philosophers and 
jurists have perpetually resorted to the theory of such a 
compact, by which to measure the rights and duties of 
governments and subjects ; but for the most part it has 
been treated as an effort of imagination, unsustained by 
the history or practice of nations, and furnishing little of 
solid instruction for the actual concerns of life. It was 
little dreamed of, that America should furnish an example 
of it in primitive and almost patriarchal simplicity." * 
Thus Massachusetts has taken the lead of all the States in 
the world in the making of social compacts and also in 
the breaking of them. This last point will, hereafter, be 
most fully illustrated and proved. 

The original draft of the Constitution of Massachusetts 
was drawn up by John Adams, the second President of 
the United States, and he certainly entertained no doubt 
that he was drawing up an " explicit and solemn compact," 
or reducing the theory of European writers to practice. 
" It is," says he, " Locke, Sidney, Pousseau, and DeMably 
reduced to practice." f All these celebrated authors on the 
" social contract " reduced to practice ! But it is all in 

*" Story on the Constitution," Book 1., chap, iii., p. 37. 
t John Adams's Works, vol. iv., p. 216. 



IS DAVIS A TRAITOR? 45 

vain. For if the fiction is reduced to fact it is only that 
the fact may be again reduced to fiction. Massachusetts 
keep her bargains ! Even her most gifted sons, her Storys 
and her Websters, exert all their genius and exhaust the 
stores of their erudition to explain away and reduce to a 
mere nullity her most solemn social compacts, both. State 
and Federal ! The theory becomes a fact, and this fact 
calls itself " an original, explicit, and solemn compact." 
But then^ as interest or power dictates, the fact is explained 
away, and there ends all the solemn farce. 

" Majorities, in a democracy, do not rely on Constitu- 
tions, do not care for Constitutions. They rely on num- 
bers and the strong arm.'' They spurn, with more than 
imperial scorn, the limitations and restraints which writ- 
ten Constitutions or judicial decisions would impose on 
their sovereign will and pleasure. They respect such 
paper checks, such dictates of reason and justice, just about 
as much as the raging billows of the ocean respected the 
line which Canute drew upon its shores. In the strong 
language of De Tocqueville, nothing can restrain them from 
crushing whatever lies in their path. This has been most 
emphatically and pre-eminently true of the Northern 
majority in every instance in which it has gained the 
ascendency in the grand Democratic Eepublic of the Xew 
"World. Cruel as death, and inexorable as the grave, it 
has moved right on to its object, regardless of the out- 
cries and " complaints of those whom it crushes upon its 
path." '•• Like every other despotic power, it must, of 
course, have its sophists, its sycophants, and flatterers, to 
persuade it that it can never violate its compacts, because 
it has never made any compact to be violated. 

Its character is most perfectly described by a great 
Northern politician ; by one who, indeed, as a distinguished 
member of the Convention of 1787 helped to frame the 
Constitution of the United States. What, then, is it in 

* De Tocqueville's " Democracy in America." 



4(3 IS DAVIS A TRAITOR? 

his view ? Is it the wild beast of Plato ? Is it " the armed 
rhinoceros or the Hyrcan tiger ?" In more respectful lan- 
guage he simply calls it "the legislative lion;" but yet, 
seeming to know its nature, as Falstaff knew the true 
Prince, by instinct, he paints it beforehand with the pen- 
cil of a master. " But, after all," says he, " what does it 
signify that men should have a written Constitution, con- 
taining unequivocal provisions and limitations? The leg- 
islative lion will not be entangled in the meshes of a logi- 
cal net. Legislation will always make the power which it 
wishes to exercise, unless it be so arranged as to contain 
within itself the sufficient check. Attempts to restrain it 
from outrage^ by other means, will only render it the 
more outrageous. The idea of binding legislators by 
oaths is puerile. Having sworn to exercise the powers 
granted, according to their true intent and meaning, they 
will, when they feel a desire to go further, avoid the 
shame, if not the guilt of perjury, by swearing the true 
intent and meaning to be, according to their comprehen- 
sion, that which suits their purpose.'' * Here, in one sen- 
tence, we have the whole nistory of the Northern power 
in advance; with all its hypocrisy, \iolation of oaths, and 
sovereign contempt of itf^ most solemn compacts and 
engagements. Is it any ^'onder, then, that the writer 
should have looked forward, with such sad foreboding, " to 
the catastrophe of the tragico-com.ical drama," f in the 
earliest stages of which he himself had acted so conspicu- 
ous a part ? 

* " I ife and Writings of Gouvemeur Morris," vol. iii., p. 323. 
y Ibid., p. 203. 



CHAPTER VIII. 

The Constitution of 1787 a Compact between the States. — The 
Facts of the Case. 

In discussing the question of the preceding chapters, 
whether the Constitution was a compact, I introduced 
much matter which incidentally showed that it was a 
compact between the States. In like manner, I shall, in 
proving that the States are the parties to the Constitu- 
tion, produce much additional evidence that it is a com- 
pact. In order to show that the States are the parties to 
the constitutional compact, let us consider — 1. The facts 
of the case; 2. The language of the Constitution itself; 
and 3. The views of Hamilton, Madison, Morris, and other 
framers of the Constitution; and 4. The absurdities flow- 
ing from the doctrine that the Constitution is not a com- 
pact between the States, but was ordained by the people 
of America as one nation. 

1. The facts of the case. " It appears to me," says Mr. 
Webster, "that the plainest account of the establishment 
of this government presents the most just and philosophi- 
cal view of its foundation." True, very true. There is, 
indeed, no proposition in the celebrated speech of Mr. 
Webster^ nor in any other speech, more true than this; 
and besides, it goes directly to the point. For the great 
question which Mr. Webster has undertaken to discuss 
relates not so much to the superstructure of the govern- 
ment as to " its foundation." 

This is the question: How was the Constitution made 
or ordained, and on what does it rest? Bearing this in 

[47] 



48 IS DAVIS A TRAITOR? 

mind, let us proceed to consider, first, his plain account of 
the establishment of the government of the United States, 
and then the arguments in favor of his position. 

First, let us consider, item by item, his plain account. 
" The people of the- several States," says he, " had their 
separate governments, and between the States there also 
existed a Confederation." True. "With this condition 
of things the people were not satisfied, as the Confedera- 
tion had been found not to fulfil its intended objects. It 
was proposed, therefore, to erect a new common govern- 
ment, which should possess certain definite powers, such 
as regarded the property of the people of all the States, 
and to be formed upon the general model of American 
Constitutions." This is not so plain. It seems partly 
true and partly false. We are told tliat the people had 
discovered the defects of the Confederation, and were con- 
sequently not satisfied with it. Alexander Hamilton, a 
contemporary witness, tells a very different story. " Men 
of intelligence," says he, " discovered the feebleness of the 
structure " of the Confederation ; " but the great body of 
the people, too much engrossed with their distresses to 
contemplate any but the immediate causes of them, were 
ignorant of the defects of their Constitution." * It was 
only " when the dangers of the war were removed," and 
the " men of intelligence " could be heard, that the people 
saw " what they had suffered, and what they had yet to 
suffer from a feeble form of government." f 

" There was no need of discerning men," as Hamilton 
truly said, " to convince the people of their unhappy con- 
dition." But they did need to be instructed respecting 
the causes of tlieir misery. So far was the great body of 
the people from having discerned for themselves the causes 
of their troubles that Mr. Madison ascribes his ability to 
make this discovery to his peculiar situation. " Having 

* Works, vol. ii., p. 445. f Tbid- 



IS DAVIS A TRAITOR? 49 

served as a member of Congress/' says he, " through the 
period between March^ 1780, and the arrival of peace, in 
1783, I had become intimately acquainted with the public 
distresses, and the causes of them/' Thus enlightened, 
and, under the dreadful aspect of affairs, "sympathizing 
in the alarm of the friends of free government at the 
threatened danger of an abortive result to the great, and 
perhaps last, experiment in its favor," Mr. Madison could 
not be " insensible to the obligation to aid as far as he 
could in averting the calamity." * Hence he acceded to 
the desire of his fellow-citizens of the county, and became 
a member of the legislature of Virginia, "hoping," as he 
declared, " that he might there best contribute to incul- 
cate the critical posture to which the revolutionary cause 
was reduced, and the merit of a leading agency of the 
state in bringing about a rescue of the Union, and the 
blessings of liberty staked on it, from an impending catas- 
trophe." 

It thus appears that the first step which, in the end, led 
to a change of the Federal Government, was not a popu- 
lar movement; it did not originate with the people; it 
sprang from the brain of James Madison, and manifested 
itself in the action of the legislature of Virginia. But 
what was this action? Was it to change the form of the 
Federal Government ? Far from it. The resolution of the 
Virginia legislature, drawn up by Mr. Madison, and intro- 
duced by Mr. Tyler, f merely appoints commissioners to 
meet such commissioners as may be appointed by the other 
States, " to take into consideration the trade of the United 
States," and "to consider how far a uniform system in 
their commercial regulations may be necessary to their 

* Madison Papers, p. 693. 

t The resolution was introduced by Mr. Tyler, rather than its 
author, because, " having never serv^ed in Congress," he " had 
more the ear of the house than those whose services there exposed 
them to an imputable bias." Madison Papers, p. 696. So great 
was the jealousy of the Federal Congress in those days. 



50 IS DAVIS A TRAITOR? 

common interest and permanent harmony/^ It suggests 
no change whatever in the Federal government, except in 
so far as this may be implied in a uniform system of com- 
mercial regulations. 

This resolution, as every one knows, led to the Annapo- 
lis Convention, which took the next great step towards the 
formation of the new Constitution. 'Nov was this a popu- 
lar movement. It originated in the brain of Alexander 
Hamilton. In the address of that convention, he says, 
" That the express terms of the power to your commis- 
sioners supposing a deputation from all the States, and 
having for its object the trade and commerce of the United 
States, your commissioners did not conceive it advisable to 
proceed on the business of their mission under the circum- 
stances of so partial and defective a representation." The 
address then proceeds to recommend " a general meeting 
of the States in a future Convention," with powers extend- 
ing to " other objects than those of commerce." ' They 
are the more naturally led to this conclusion," say the 
Convention, " as in their reflections on the subject they 
have been induced to think that the power of regulating 
trade is of such comprehensive extent, and will enter so 
far into the grand system of the Federal government, that 
to give it efficacy, and to obviate questions and doubts 
concerning its precise nature and limits, may require a 
correspondent adjustment in other parts of the Federal 
system." 

" That there are important defects in the system of the 
Federal Government," continues the address, "is acknow- 
ledged by the acts of those States which have concurred 
in the present meeting. That the defects, upon a closer 
examination, may be found greater and more numerous 
than even these acts imply, is at least so far probable, 
from the embarrassment which characterizes the present 
state of our national affairs^ foreign and domestic, as may 
reasonably be supposed to merit a deliberate and candid 



IS DAVIS A TRAITOR? 51 

discussion, in some mode which will unite the sentiments 
and counsels of all the States." 

In compliance with this recommendation of " a general 
meeting of the States in a future convention/' twelve 
States met at Philadelphia on the 14th of May, 1787, with 
instructions to join " in devising and discussing all such 
alterations and further provisions as may be necessary to 
render the Federal Constitution adequate to the exigencies 
of the Union." * " The recommendation was received by 
the legislature of Virginia," says Mr. Madison, "which 
happened to be the first that acted on it, and the example 
of her compliance was made as conciliatory and impressive 
as possbile." f Thus it was Alexander Hamilton, as the 
master spirit of the Annapolis Convention, who first con- 
ceived the idea of a general convention to revise and amend 
the Federal Government, and it was James Madison, as 
the great ruling genius of the legislature of Virginia, who 
gave the first and most powerful impulse to that concep- 
tion. The great mass of the people had very little to do 
with the movement. 

"A resort to a general convention," says Mr. Madison, 
" to remodel the Confederacy, was not a new idea." X He 
then mentions five persons by whom this idea had been 
entertained; namely, Pelatiah Webster, Colonel Hamilton, 
E. H. Lee, James Madison, and Noah Webster. None of 
these, however, go beyond the idea of Hamilton, "to 
strengthen the Federal Constitution;" or of Madison, to 
supply its defects.§ But if this had been a popular move- 

* ]\Iadison Papers, p. 706. These are the words of the resolu- 
tion of Virginia; the instructions of the other States were equiva- 
lent to these. f I^i^, P- 703. t Madison Papers, 706. 

§ The two Websters, Pelatiah and Noah, do show some origi- 
nality. The one, in 1781, seeing that Congress had not sufficient 
authority " for the performance of their duties," (though he does 
not tell us what duties they had to perform, except to exercise 
the authority entrusted to them,) suggests the plan of a Conti- 
nental Convention, for the express purpose, " among other things. 



52 IS DAVIS A TRAITOR? 

ment, Mr. Madison could easily have found/ during the 
period of three years, more than five candidates for the 
once hotly-contested honor of having conceived the first 
idea of a Convention to remodel the Confederacy or to 
amend the Federal Constitution. 

The plain truth is, that it was Alexander Hamilton, and 
not the people who, grappling with the vast and compli- 
cated idea of a regular commercial system, saw the changes 
which such a system must introduce into the Federal Gov- 
ernment. Hence it was Alexander Hamilton, and not the 
people, who became dissatisfied with the Confederation as 
it was, and sought to have its Constitution remodeled. 
" He was the first," as the historian of the Constitution 
has truly said, " to perceive and develop the idea of a real 
union of the people of the United States." f 

It was not proposed then, as Mr. Webster alleges, and 
no one ever proposed, to set aside the Confederation in 
order to establish a government. The Confederation was 
itself a government. This contrast between the Confed- 
eration and a government, as things essentially different 
in kind, which pervades the whole of Mr. Webster's speech, 
and which is even interwoven with his " plain account of 
the establishment of the government " of the United States, 
is purely a hypothesis of his own. Hamilton and the Con- 
vention of Annapolis repeatedly speak, as we have seen, 
of " the Federal Constitution " and " the Federal Govern- 
ment." Madison and the legislature of Virginia use 
precisely the same language in reference to the same 
objects. Even Pelatiah Webster, in this respect, far less 
original than his great namesake, speaks of the " Consti- 

of enlarging the duties of their CJonstitution." The other, in 
1784. wii^hed for a. govomment "which should act, not on States, 
but dirwtly on individuals." If this idea really originated with 
Nonh ^^'el)ster. then there are many \vho will think that his 
political pamphlet cancelled the obligations which his spelling 
book conferred on the country. Mr. Webster was also original 
in his orthography. 

t " Histon- of the Constitution of the United States," by Curtis, 
vol. i.. p. 413. 



IS DAVIS A TRAITOR? 55 

tution " of the Federal Government. The Convention of 
^87, also call the old Confederation " the Federal Govern- 
ment/^ * 

But we must proceed to the next item of Mr. Webster^s 
plain account. " This proposal/' says he^ " was assented 
to, and an instrument was presented to the people of the 
several States for their consideration. They approved it, 
and agreed to adopt it, as a Constitution." True, as far as . 
it goes. But when Mr. Webster asks, " Is not this the 
truth of the whole matter?" we are bound to answer that 
this is either not the truth of the whole matter, or it is not 
the whole truth of the matter. On the contrary, it omits 
precisely those great truths which shed the most light on 
the foundation of the government of the United States. 
One might well suppose, from the above statement, that 
the people of the several States had jointly approved the 
Constitution, and jointly ordained it as a Constitution. 
But however essential this view may be to the theory of 
Mr. Webster — and his theory is as baseless as the fabric of 
a vision without it — it has not the shadow of a foundation 
in the facts of history. 

The plain and unquestionable fact is, that each State 
adopted or rejected the Constitution for itself, and for itself 
alone. No twelve States could by their united action lay the 
bonds of a new Constitution on the thirteenth State. This 
was universally conceded. The little State of Ehode Island 
stood aloof; and though her conduct was reprobated, no 
one denied her right. Neither all the other States com- 
bined, nor all the people of America, had the shadow of an 
authority to constrain her action, or to control her own 
free choice. No power on earth could touch the priceless 
pearl of her sovereignty in the affair. Xo one presumed' 
to question her right to decide for herself. This right was 
then as clear as the sun, and all eyes recognized it. And 
this was true, not only in relation to Ehode Island, but 

* Madison Papers, pp. 730-35, etc. 



54 IS DAVIS A TRAITOR? 

also to each State in the Confederacy. For in the act of 
re-union each State was perfectly free and independent, 
uncontrolled and uncontrollable by any power upon earth. 

But this fact, which is far too recent and too well 
authenticated to^ be denied by any one, goes to the very 
foundation of the government of the United States, and 
shows that its Constitution rested on a federal, and not on 
a national act. It shows that it was a union of States, 
effected by the several acts of each State, and not the union 
of all the individuals in America, acting as one political 
community. 

All this was known to Mr. Webster. No man with the 
least politcal information or reading could have remained 
ignorant of it. But still he glossed it over, or kept it in 
the far distant backgiound, as unsuited to his hypothesis 
and to the logic of the Northern power, that the Constitu- 
tion was ordained by " the people of the United States in 
the aggregate," and not by the people of the United States 
in the segregate. And yet, after he has given his one- 
sided, superficial, and unfair statement, he calls it " a plain 
account," and asks, " Now, sir, is not this the truth of the 
whole matter? And is not all that we have heard of a 
compact between Sovereign States the mere effect of a 
theoretical and artificial mode of reasoning upon the sub- 
ject? — a mode of reasoning which disregards plain facts 
for the sake of hypothesis?" Comment is unneccessary. 

Mr. Webster's " plain account " is, in fact, a gross falsi- 
fication of history. If possible, however, it is surpassed 
by Mr. Motley. This most unscrupulous writer asserts: 
" The Constitution was not drawn up by the States, it was 
not promulgated in the name of the States, it was not rati- 
fied by the States." * Now each and every one of these 
assertions is diametrically opposed to the truth. Strike 
out the little syllable " not " from every clause of the above 
sentence, and it will then express the exact truth. For, 

•Rebellion Record, vol. 1., p. 211. 



IS DAVIS A TRAITOR? 55 

in the first place, as the record shows, it is a plain and 
incontrovertible fact, that the Constitution was drawn 
up or framed by the States. 

It was drawn up or framed, as every one knows, by the 
Convention of 1787; in which the States, and the States 
alone, were represented. Every iota of the Constitution 
was decided upon, and found a place in that written instru- 
ment, by a vote of the States ; each State having one vote ; 
the little State of Delaware, for example, having an equal 
vote with New York, Pennsylvania, or Virginia. No fact 
should be more perfectly notorious, or well-known, than 
this; for it stands out everywhere on the very face of the 
proceedings of the Convention, which framed the Consti- 
tution. Thus, for example, " On the question for a single 
Executive; it was agreed to, — Massachusetts, Connecticut, 
Pennsylvania, Virginia, North Carolina, South Carolina, 
Georgia, aye — 7; New York, Delaware, Maryland, no — 
3." * In like manner, every other item of the Constitution 
was decided upon, and the whole instrument formed, by a 
vote of the States; acting as separate, independent, and 
equal bodies. How, in the face of such a fact, could Mr. 
Motley so boldly assert, that the Constitution was not 
drawn up, or framed, by the States? By whom, then, 
was it framed? Was it framed by "the people of the 
United States in the aggregate ;" acting as one nation ? 
Nothing is farther from the truth. There is not even the 
shadow of a foundation for any such assertion or insinua- 
tion. Will it be said, that the Constitution was drawn 
up, not by the States, but by those who proposed its various 
articles? If so, such a subterfuge would be nothing 
to the purpose, and very far from deserving a moment's 
notice. 

The second assertion of Mr. Motley, that the Constitu- 
tion " was not promulgated in the name of the States,'' is 
equally unfortunate. For, as every one knows, it was 

* The Madison Papers, p. 783. 



56 IS DAVIS A TRAITOR? 

promulgated by the Congress of the Confederation in 
which the States alone were represented, and in which all 
the States were perfectly equal. The " Article of Confed- 
eration " says : " In determining questions in the United 
States, in Congress assembled, eacli State shall have one 
vote." * It was thus as equals that the States voted in 
determining to promulgate the new Constitution; and it 
was in consequence of that action of the States, that the 
Constitution was promulgated and laid before the people 
of the several States for their adoption. Here, again,, in 
direct opposition to the unblushing assertion of Mr. Mot- 
ley, the Constitution was promulgated by the States in 
Congress assembled. If Mr. Motley had only deigned to 
glance at the history of the transaction about which he 
speaks so confidently, he could not have failed to perceive, 
that the Constitution was first submitted, by the Conven- 
tion of 1787, "to the United States in Congress assem- 
bled ;" t ^^d that it was afterwards, in conformity with the 
opinion of the Convention, promulgated by the States " in 
Congress assembled,^' But Mr. Motley's theory of the 
Constitution takes leave of history; and has little to do 
with facts, except to contradict them. 

" The Constitution was not ratified by the States," says 
Motley. In the Eesolutions just quoted, and which were 
unanimously adopted by the Convention of 1787, we find 
this clause : " Resolved, That in the opinion of this Con- 
vention that as soon as the Convention of nine States 
shall have ratified this Constitution, the United States 
in Congress assembled should fix a day on which electors 
should be appointed by the States which shall have 
ratified the same" &c. Not one of the fathers of the Con- 
stitution ever imagined that it was not ratified by the 
States. But in this instance, as well as in many others, 

* Art. V. 

t IWesolutions which, " by the unanimous order of the Clonven- 
tion " of 1787, was forwarded with the Constitution to Congress. 



IS DAVIS A TRAITOR? 57 

their most familiar idea is repudiated, and their most 
explicit language is contradicted, by Mr. Motley. 

In the sentence next to the one above quoted from 
Motley, he says : " The States never acceded to it [the Con- 
stitution,] and possess no power to secede from it." * This 
peremptory and flat contradiction of the language of the 
fathers of the Constitution deserves no further notice ; since 
it has already been sufficiently exposed. 

* Chapter iii. 



C H A V T E R J X . 

The Constitution a Compact heticeen the States — The language of 
the Constitution. 

2. The Language of the Constitution. " We the people 
of the United States, in order to form a more perfect union, 

do ordain and establish this Constitution for the 

United States of America." The first clause of this pre- 
amble to the Constitution, wholly detached from its his- 
tory and from every other portion of the same instrument, 
as well as from all the contemporary and subsequent 
expositions of its authors, is made the very corner-stone 
of the Northern theory of the general government of the 
United States. That tremendous theorv, or scheme of 
power, has been erected on this naked, isolated, and, as we 
expect to show, grossly misinterpreted clause. 

From the bare words of this clause it is concluded, both 
by Story and Webster, that the Constitution was estab- 
lished or ratified, not by a federal but by a national act; 
or, in other terms, that it was not ratified by the States, 
but by a power superior to the States, that is, by the sover- 
eign will of " the whole people of the United States in the 
aggregate," acting as one nation or political community. 
With Puritanical zeal they stick to " the very words of the 
Constitution," while the meaning of the words is unheeded 
by them, either because it is unknown, or because it does 
not suit their purpose. But words are not the money, 
they are merely the counters, of wise men. The meaning 
of the Constitution is the Constitution. 

In arriving at the meaning of these words, of the very 

[58] 



IS DAVIS A TRAITOR? 59 

clause in question, I shall not do the least violence to any 
law of language, or to any rule of interpretation. I sliall, 
on the contrary, show that we are not " obliged to depart 
from the words of the instrument/^ * as Mr. Justice Story 
alleges, in order to sustain our interpretation of any por- 
tion of it. I shall show that the Southern interpretation 
of the clause in question is, in reality, the only fair, legiti- 
mate and reasonable sense of the preamble itself. Nor 
shall I, for this purpose, repeat the arguments which are 
usually employed by the friends of the South in this con- 
troversy. Those arguments are amply sufficient to refute 
the interpretation of Story and Webster. But they are so 
well put by others — by John Taylor, of Caroline; by 
Judge Upshur, of Virginia; by John C. Calhoun, of South 
Carolina; and especially by Mr. Spence, of Liverpool, that 
I need not repeat them here. Every one may find access 
to them in the admirable work of Mr. Spence. f Hence, 
passing by those arguments, I shall, by an appeal to the 
records of the Convention of 1787, make my position good, 
and annihilate the great corner-stone of the Northern 
theory of the Constitution of the United. States. 

"We, the people of the United States." The history 
of these words is curious and instructive. Only a portion 
of that history has, as yet, been laid before the public of 
England or of the United States. In the light of that 
history the great corner-stone in question will be found to 
crumble into dust and ashes ; and the only wonder will be, 
that considerations so clear and so conclusive should have 
been so long locked up, as a profound secret, in the records 
of the very Convention that formed the Constitution of the 
United States. 

It is well known that in the original draft of the Con- 
stitution, its preamble, instead of saying, " We, the people 

* " Commentaries on the Constitution," Book iii., chap. ii. 
t We have only said admirable; but, all things considered, Mr. 
Spence's work is trulj^ a wonderful production. 



60 IS DAVIS A TRAITOR? 

of the United States," specified each State by name, as 
the previous Articles of Confederation had done. If it 
had remained thus, then the States would have appeared, 
on the very face of the preamble itself, as the parties to 
the Constitution. But the preamble, as is well known, was 
afterwards changed, by omitting to mention the States by 
name. There are, however, some most important facts 
connected with the change and the origin of the words in 
question, which seem to be wholly unknown on both sides 
of the Atlantic. They have, certainly, attracted no notice 
whatever from any of the writers on the great controversy 
between the Xorth and the South. 

The first of these facts relates to the person by whom, 
and the manner in which, the change in question was 
effected; or, the words, "We, the people of the United 
States," were substituted for an enumeration of the States 
*by name. During all the great discussions of the Con- 
vention, the preamble to the Constitution retained its orig- 
inal form; nor was there, from the beginning to the end 
of their deliberations, a single whisper of dissatisfaction 
with it in that form. Every member of the Convention 
appeared perfectly satisfied that the States should stand, 
on the very front of the Constitution, as the parties to the 
compact into which they were about to enter. It was 
only after the provisions of the Constitution were agreed 
upon, and its language was referred to "a committee on 
style," that the names of the States were silently omitted," 
and the clause, "We, the people of the United States," 
substituted in their place. Now, it will not be denied, that 
if this change had not been made by the "committee on 
style," then the States would have been the parties to the 
new Constitution just as they had been to the old Articles 
of Confederation. Hence, if the interpretation of Story 
and Webster be the true one, then it must be admitted 
that the " committee on style," appointed merely to express 
the views of the Convention, really transformed the nature 



IS DAVIS A TRAITOR? 61 

of the Constitution of the United States ! Then it must 
be admitted, that the " committee on style/' by a single 
turn of its pen, changed the course of history and the 
meaning of its facts; causing the supreme power of the 
Federal Government to emanate, not from the States, but 
from the people of America as one political community! 
Did the " committee on style " do all this ? And is it on 
legislation like this that a sovereign State is to be deemed 
guilty of treason and rebellion against the sublime author- 
ity of the people of America, and visited with the utmost 
vengeance of that malign power? The sublime authority 
of the people of America, the one grand nation, erected 
and established solelv by the pen of the " committee on 
style ?' 

This clause, " We, the people of the United States," 
introduced by the " committee on style," and passed over 
in perfect silence by the whole Convention, is the great 
stronghold, if it has one, of the Northern theory of the 
Constitution. The argument from these words appears in 
every speech, book, pamphlet, and discussion by every 
advocate of the N'orth. It was wielded by Mr. Webster 
in his great debate with Mr. Calhoun, in 1833, and still 
more fully in his still more eloquent speech on Foot's 
resolutions in 1830. " The Constitution itself," says he, 
in its very front, declares that it was ordained and estab- 
lished by the people of the United States in the aggre- 
gate." The fact is not so. The Constitution neither 
declares that it was established by the people of the United 
States in the aggregrate, nor by the people of the United 
States in the segregate. But if we look into the history of 
the transaction, we shall find that it was established by them 
in the latter character, and not in the former. We shall 
find that each State acted separately, and for itself alone; 
and that no one pretended, or imagined, that the whole 
aggregate vote of any twelve States could bind the thir- 
teenth State, without its own individual consent and rati- 



62 IS DAVJS A TRAITOR? 

fication. In order to make out his interpretation, Mr. 
AYebster interpolates the legislation of the ^' committee on 
style ^^ with words of his own. 

The change in the preamble to the Constitution was 
effected by the pen of Gouverneur Morris, one of the most 
zealous advocates in the Convention of 1787, for a strong 
national Government. He certainly wished all power to 
emanate from the people of America, and to have them 
regarded as one great nation. But did he accomplish his 
wish ? In the Convention^ says the record, " Gouverneur 
Morris moved that the reference of the plan (i. e., of the 
Constitution) be made to one General Convention, chosen 
and authorized by the people, to consider, amend, and 
establish the same." * This motion, if adopted, would 
indeed have caused the Constitution to be ratified by " the 
people of the United States in the aggregate," or as one 
nation. This would, in fact, have made it a Government 
emanating from the people of America in one General 
Convention assembled and not from the States. But how 
was this motion received by the Convention? Was it 
approved and passed in the affirmative by that body? It 
did not even find a second in the Convention of 1787. So 
says the record,* and this is a most significant fact. So 
completely was such a mode of ratification deemed out of 
the question that it found not the symptom or shadow of 
support from the authors of the Constitution of the United 
States. 

Now was the very object, which Gouverneur Morris so 
signally failed to accomplish directly and openly by his 
motion, indirectly and covertly effected by his style ? And 
if so, did he design to effect such a change in the funda- 
mental law of the United States of America? It is cer- 
tain that precisely the same effect is given to his words, 
to his style, as would have resulted from the passage of 
his motion by the Convention. Did Gouverneur Morris 

* " Tlio Madison Papers," p. 1184. 



IS DAVIS A TRAITOR? 63 

then intend that his words should have such force and 
effect? In supposing him capable of such a fraud on the 
Convention of 1787, I certainly do him no injustice, since 
we have his own confession that he actually perpetrated 
several such frauds on that assembly of Constitution- 
makers. " That instrument/' says he in reference to 
the Constitution, " was written by the fingers which 
writes this letter. Having rejected redundant terms, 
I believed it to be as clear as language would permit; 
excepting, nevertheless, a part of what relates to the 
judiciary. On that subject conflicting opinions had been 
maintained with so much professional astuteness, that it 
became necessary to select phrases, which expressing my 
own notions would not alarm others, nor shock their self- 
love; and to the best of my recollection this was the only 
part which passed without cavil." * How adroitly, then, 
how cunningly, he cheats the Convention into the uncon- 
scious sanction of his " own notions f and this great 
legislator of the North, even in the purer days of the 
infant republic, was proud of the fraud ! 

Nor is this the only instance in which, according to his 
own confession and boast, Gouverneur Morris trickled the 
Convention into the adoption of his own private views. 
" I always thought,'' says he, in another letter, " that 
when we should acquire Canada and Louisiana, it would 
be proper to govern them as provinces, and allow them no 
voice in our councils. In wording the third section of the 
fourth article I went as far as circumstances would permit 
to establish the exclusion. Candor obliges me to add my 
belief that, had it been more pointedly expressed, a strong 
opposition would have been made." f Thus, as the penman 
of the committee on style, he abused his high position, not 
only to mould the judiciary system of the United States to 
suit his " own notions," but also to determine the fate of 

* " Life and Writings of Gouverneur Morris," vol. iii., p. 323, 
t Ibid, vol. iii., p. 193. 



64 IS DAVIS A TRAITOR? 

two vast empires ! Is not such legislation truly won- 
derful? Instead of weighing every word with the utmost 
care, and then depositing it in the Constitution as under the 
solemn sanction of an oath^ the Convention trusts the style 
of the instrument to a fine writer, who cunningly gives 
expression to his own views in opposition to those of the 
assembly ! " In a play, or a moral/' says Jeremy Ben- 
tham, "an improper word is but a word; and the impro- 
priety, whether noted or not, is attended with no conse- 
quences. In a body of laws — especially of laws given as 
Constitutional ones — an improper word would be a national 
calamity and civil war may be the consequences of it. 
Out of one foolish word may start a thousand daggers." 
How true, and how fearfully has this truth been illustrated 
by the history of the United States ! 

But although Gouverneur Morris was capable of such a 
fraud on the Convention, we have no good reason to 
believe he intended one, by the substitution of the words, 
"We, the people of the United States,'^ for the enumera- 
tion of all the States by name. He has nowhere confessed 
to any such thing; and besides he did not understand his 
own words as they are so confidently understood by Story 
and Webster. Every rational inquirer after truth should, 
it seems to me, be curious to know what sense Gouverneur 
Morris attached to the words in question, since it was by 
his pen that they were introduced into the preamble of 
the Constitution. Nor will such curiosity be diminished, 
but rather increased, by the fact that he did, in some 
cases, aim to foist his own private views into the Consti- 
tution of his country. How, then, did Gouverneur Morris 
understand the words, "We, the people of the United 
States?" Did he infer from these words that the Consti- 
tution was not a compact between States, or that it was 
established by the people of America, and not by the States ? 
I answer this question in the words of Gouverneur Morris 
himself. " The Constitution," says he, " was a compact. 



IS DAVIS A TRAITOR? 65 

not between individuals^ but between political societies, 
the people, not of America, but of the United States, each 
enjoying sovereign power and of course equal rights." * 
Language could not possibly be more explicit. Nor could 
it be more evident than it is, that Gouverneur Morris, the 
very author of the words in question, entertained pre- 
cisely the same view of their meaning as that maintained 
by Mr. Calhoun and his school. This point was, indeed, 
made far too clear by the proceedings of the Convention 
of 1787 for any member of that body to entertain the 
shadow of a doubt in relation to it. Nor can any one 
read these proceedings as they deserve to be read, without 
agreeing with Gouverneur Morris, that the authors of the 
Constitution designed it to be ratified, as in fact it was, by 
" the people of the United States," not as individuals, but 
as " political societies, each enjoying sovereign power, and 
of course equal rights." Or, in other words, without 
seeing that " the Constitution was a compact," not between 
individuals, "but between political societies," between 
sovereign States. This, in the next chapter, I hope and 
expect to make perfectly clear, by bringing to view the 
origin of the words "We, the people," and by showing 
the sense in which they were universally understood and 
used by the members of the Convention of 1787 in the 
very act of framing the Constitution of the United States. 

* " Life and Writings,' vol. iii., p, 193. 



CHAPTER X. 

The Constitution of 1787 a Compact between the States. The 
Language of the Constitution. 

The Convention of 1787 did^ as we have seen, refuse to 
call the government a national one, and gave it the name 
of " the government of the United States." Did they 
then make it a national one by enacting that it should be 
ordained by "the whole people of the United States in 
the aggregate " as one political society ? Again, when it 
was proposed in the Convention to ordain the Constitution 
by "the people of the United States in the aggre- 
gate," in one general Convention assembled, the motion 
failed, as we have seen, to secure a second. Did Gov- 
ernor Morris, then, the author of that proposal, achieve 
by his style what he failed to accomplish by his motion? 
If so, what should we think of tlie incompetency of the 
Convention ? 

Xor was this all. For Madison introduced a motion 
which required " a concurrence of a majority of both the 
States and the people " * at large to establish the Constitu- 
tion; and this proposition was rejected by the Conven- 
tion. All these motions, designed to connect the new 
government with a national origin, were lost, and the 
decree went forth that the Constitution should be estab- 
lished by the accession of nine States, each acting for 
itself alone, and to be bound only by its own voluntary 
act. Now, the question is, was all this action of the Con- 
vention overruled and defeated by the committee on style,. 

* " The Madison Papers," p. 1470. 
[66] 



TS DAVIS A TRAITOR? 67 

or rather by its penman, Gouverneur Morris? If he formed 
such design, then it must be admitted that the Northern 
theory of the Constitution was conceived in fraud and 
brought forth in iniquity; and every honest man at the 
!N"orth ought to be ashamed both of its origin and its exist- 
ence. But, as we have already seen, Gouverneur Morris did 
not understand his own words, " We, the people," as they 
are understood by the more modern expounders of the 
Constitution at the North. Hence we have no reason to 
believe that he intended, in this case at least, a fraud on 
the design and will of the Convention. 

Was the whole thing done then, and the nature of the 
Constitution transformed, by a slip of the pen, or by acci- 
dent ? After all their opposition both to the name and to 
the thing did the Convention, by sheer oversight, blunder 
into the construction of a purely national government, by 
permitting it to be established by the people of America 
as one grand political community ? If Mr. Justice Story's 
view of the words, " We, the people of the United States," 
be correct, how did it happen that the opponents of such 
a mode of ratification said absolutely nothing. The whole 
instrument, as amended by the committee on st^de, was 
read in the hearing of the Convention, beginning with the 
preamble, and yet the words, "We, the people of the 
United States," now deemed so formidable to the advocates 
of State sovereigntv, did not raise a single whisper of 
opposition. How could this have happened if the words 
in question were supposed to mean the people of America, 
or the whole people of the United States as one political 
society ? AYere Mason, and Martin, and Paterson^ and Ells- 
worth, all too dull to perceive that meaning, which is so 
perfectly obvious to Mr. Justice Story, and which he 
imagines that nothing but the most purblind obstinacy can 
resist ? Were all the friends of the States, as independent 
sovereignties, asleep on their posts while Gouverneur Mor- 
ris thus transformed the nature of the Constitution, with- 



68 IS DAVIS A TRAITOR? 

out knowing it himself, by causing it to emanate, not from 
the States, but from the people of America as one nation? 
No. Not one of these suppositions is the true one. The 
whole mystery is explained in the proceedings of the Con- 
vention of 1787, as exhibited in "The Madison Papers;" 
an explanation which, however, has hitherto been most 
unaccountably overlooked. We may there find the real 
meaning of the words in question, and see why they gave 
no alarm to the advocates of State sovereignty. 

If we cast our eyes all along the subject of " the mode 
of ratification," ranging from page 735 to page 1632 of 
" The Madison Papers," we shall perceive that the ques- 
tion, whether the Constitution should be ratified by the 
people of " the United States in the aggregate," or by the 
several States, was not considered by the Convention at 
all. No such question was before the Convention. It was 
neither mooted nor considered by them. The error of 
Story and Webster is, that they construe the first clause 
of the Constitution as if it referred to one question; 
whereas, in fact, it referred to quite another and a far dif- 
ferent question — that is, they construed this clause in pro- 
found darkness as to the origin of its words, as well as to 
their use and application in the Convention of 1787. If 
they had understood them as actually and uniformly used 
or applied by the framers of the Constitution, then they 
could neither have deceived themselves nor the people of 
the North. If, indeed, they had been members of that 
Convention, or had only examined its proceedings, they 
would have seen why the staunch advocates of State sov- 
eignty raised not even the slightest whisper of opposition 
to the words, "We, the people." Or, if Patrick Henry 
had been a member of that assembly, then he could not 
have exclaimed, as he did, " Why say We, the people, and 
not We, the States?" — an exclamation so often quoted by 
Story, Webster, and the whole Northern school of politi- 
cians as a conclusive authoritv — for then he would have 



IS DAVIS A TRAITOR? 61) 

seen that " We, the people/' in the language of the f ramers 
of the Constitution, meant precisely the same thing as 
"We, the States," and neither more nor less. 

The question before the Convention was, whether the 
Constitution should be ratified by the legislatures or by 
the sovereign peoples of the several States. No one 
doubted that it was to be ratified by the States. This, as 
we shall see, was on all hands regarded as a settled point. 
The only question was, whether it should be ratified by 
the States, acting through their legislatures, or through 
Conventions elected to represent the people for that special 
purpose. In the discussion of this question, most of 
the members insisted that the Constitution should be rati- 
fied by the people, by the States in their sovereign capa- 
city, or by their Conventions. These several modes of 
expression were, in the vocabulary of the Convention, used 
as convertible terms, as perfectly synonymous with 
each other. Hence the phrase, " the people of the United 
States," as used and understood by them, meant the peo- 
ple of the several States as contradistinguished from their 
legislatures, and not the people of America as contradis- 
tinguished from the distinct and separate sovereign peo- 
ples of the different States. This application of the words 
is the invention of theorists merely. It was unknown to 
the Convention of 1787, and has had no existence except 
in the imaginations of those by whom their labors have 
been systematically misconstrued and perverted from their 
original design. 

Some few members of the Convention were in favor of 
leaving " the States to choose their own mode of ratifica- 
tion ;" but the great majority of them insisted that the Con- 
stitution should be referred to the States for ratification, 
either through their legislatures or through their people 
in Conventions assembled. It was in regard to these two 
methods that the Convention was divided. All agreed 
that it should be done by " the States," and the only ques- 



70 IS DAVIS A TRAITOR? 

tion was as to how " the States " should do it. The idea 
that it was designed to be done, or that it was done, by 
the peojDle of America as one nation, is the dream of a 
later day, and, as we shall see, is nothing but a dream. 

Some insisted that it should be ratified by the States in 
their corporate capacity — that is, by their legislatures; 
and others that it should be ratified by the States in their 
sovereign political capacity — that is, by their Conventions 
assembled for that express purpose. Or, in other words, 
some contended that it ought to be ratified by their general 
agents, the legislatners ; and others that it ought to be 
ratified by their special agents, the Conventions elected 
and assembled to perform that high act of sovereign 
power. In both cases, it was to be ratified by the States, 
but the opposite parties preferred different modes of rati- 
fication by them. 

In debating this question, as to the mode of ratification 
by the States (the only one before the Convention), some 
of the most inflexible advocates of State sovereignty 
insisted that it should be ratified by " the people of the 
United States.'' But then they understood this language, 
and ever\^ member of the Convention understood it to 
mean the peoples of the several States, as distinguished 
from their legislatures. If, for one moment, they had 
imagined that their language could have been construed 
to mean a ratification of the Constitution by the collec- 
tive will of the whole people of America, they would have 
shrunk from its use with horror! for they dreaded noth- 
ing more than the idea of such an immense consolidated 
democracy. On the contrary, they clung to the States, 
and to their rights, as the only sheet-anchor of safety 
against the overwhelming and all-devouring floods of 
such a national union of mere numl)ers or individuals. 
George Mason, no less than Patrick Henry, would have 
exclaimed against the words, "We, the people," if, as a 
member of the Convention of 1787, he liad not learned 
that they only meant " We, the States.'* 



IS DAVIS A TRAITOR? 71 

In discussing the question as to the mode of ratification 
"by " the States/' Mr. Mason said " he oconsidered a refer- 
ence of the plan to the authority of the peojDle as one of 
the most important and essential of the resolutions. The 

legislatures have no power to ratify it Another 

strong reason (said he) was that admitting the legislatures 
to have a competent authority it would be wrong to refer 
the plan to them, because succeeding legislatures, having 
equal authority, could undo the acts of their predeces- 
sors.'' * This argument was repeatedly urged by other 
members, and it was insisted that if the Constitution 
should be ratified by the legislatures of the States, instead 
of by the people of the States, it would rest upon a weak 
and tottering foundation, since the legislatures which had 
established might claim the power to repeal. 

In like manner Mr. Madison said, " For these reasons, as 
well as for others, he thought it indispensable that the 
new Constitution should be ratified in the unexceptionable 
form, and by the supreme authority of the people 
themselves " f — that is, as the context shows, by the 
supreme authority of the people of the several States in 
opposition to their " legislative sanction only." Not one 
word was ever said during the whole of the debate about 
referring the Constitution to the people of the whole 
country in the aggregate for ratification. This idea had 
not then risen above the horizon of the political world, 
though it afterwards became the great political sun of 
the Northern section of the Union. 

Those who advocated the mode of ratification by the 
people, or by the Conventions of the States elected for that 
purpose, prevailed over those who urged the ratification 
by the legislatures. The majority favored the mode of 
ratification by the people or the Conventions. Accord- 
ingly, when the committee of detail reported a draft of 

*" Madison Papers," p. 1177. 
t Ibid, p. 796. 



72 IS DAVIS A TRAITOR? 

the Constitution, we find these words — "Article XXI. 

The ratifications of the Conventions of States shall 

be sufficient for the organization of this Constitution." * 
Thus it came to be perfectly understood that it should be 
ratified by the Conventions or the peoples of the several 
States, and not by their legislatures. 

But here the question arose, if the blank for the number 
of States should be filled with " seven," " eight," or " nine." 
The Constitution, as it stood, might, in the opinion of Mr. 
Madison, be put in force over " the whole body of the peo- 
ple, though less than a majority of them should ratify it." 
But, in the opinion of Mr. Wilson, "As the Constitution 
stands, the States only which ratify can be bound." f In 
order to remove this difficulty, and settle the question, 
Mr. King moved to add, at the end of Article XXI, the 
words " between the said States, so as to confine the opera- 
tion of the government to the States ratifying the same." X 
Thus it was Rufus King, at first one of the most strenuous 
advocates in the Convention of 1787 for a strong national 
government, who introduced the words by which the Con- 
stitution was made binding " between the States so ratify- 
ing the same." These words proved acceptable to Madi- 
son and Wilson, though both were among the most zeal- 
ous advocates of a strong general government in the Con- 
vention of 1787, and they became a part of the new Con- 
stitution. Thus it was universally understood by the 
Convention, and so expressed, that the new Constitution 
was to be establihed " by the ratification of the Conven- 
tions of States," and to be binding only " between 

the States so ratifying the same." 

During all this time the name of each State still retained 
its place in the preamble to the Constitution, in which the 
committee of detail made no change; and if the party, 
with Gerry and Hamilton at their head, who wished to fill 

* Madison Papers, p. 1241. f Ibid, p. 1469. t Ibid, p. 1470. 



JS DAVIS A TRAITOR? 73 

the blank with the whole thirteen States, had prevailed, we 
have no reason to believe that any alteration would in this 
respect have been made in the preamble to the Constitution. 
But when after debate, the blank was filled with " nine," it 
became impossible to specify the States between whom the 
new Constitution might be established or the new gov- 
ernment organized. Hence it became proper, if not neces- 
sary, to drop the specification of the States by name — a 
change which, as we have seen, was first introduced by 
the committee on style, and read to the Convention with- 
out raising the slightest objection or murmur. 

We are now prepared to see, as in the clear light of 
noon-da}^, why the words, " We, the people of the United 
States," which have since made so much noise in the 
political world, did not make any whatever in the Con- 
vention of 1787. Why should George Mason, or any other 
adherent of State sovereignty, object to the words intro- 
duced by the committee on style ? They merely expressed 
the very thing for which he had contended, and which had 
been fully expressed in the seventh Article of the new 
Constitution. For when it was determined that the Con- 
stitution should be ratified by "the Conventions of the 
States," and not by the legislatures, this was exactly 
equivalent, in the uniform language of the Convention of 
1787, to saying that it shall be ratified by "the people of 
the States." Hence, the most ardent friend of State rights, 
or State sovereignty, saw no reason why he should object 
to the words, "We, the people of the United States," 
because he knew they were only intended to express the 
mode of ratification by the States for which he had con- 
tended — that is, by the States in their sovereign capacity, 
as so many political societies or peoples, as distinguished 
from their legislatures. 



CHAPTER XI. 

The Constitution of 1787 a Compact between the States. The 
views of Hamilton, Madison, Morris, and other Framers of the 
Constitution. 

This subject has already been anticipated, but by no 
means exhausted. Considering the unparalleled boldness 
of Northern assertion, it is necessary to lay bare a few 
more of its hidden mysteries. " Indeed/' says Mr. Web- 
ster, " if we look into all contemporary history ; to the 
numbers of The Fedalist; to the debates in the Conven- 
tion; to the publication of friends and foes, they all agree, 
that a change had been made from a confederacy of States 
to a different system; they all agree, that the Convention 
had formed a Constitution for a national government. 
With this result some were satisfied, and some were dissat- 
isfied ; but all admitted that the thing had been done. In 
none of the various productions and publications, did any 
one intimate that the new Constitution was but another 
compact between States in their sovereign capacity. I do 
not find such an opinion advanced in a single instance." * 

iTow this is certainly as bold and sweeping an assertion 
as could well be made in human language. It is certainly 
as full, round, and complete an untruth as was ever 
uttered. It will, upon examination, be found that, to use 
the mildest possible terms, it is fitly characterized by the 
two words — high-sounding and hollow. It would, perhaps, 
be difficult for any man, except Mr. Webster and his suc- 
cessor in the Senate of the United States, to produce a 

* Speech in Senate, Feb. 16, 1833. 
[74] 



IS DAVIS A TRAITOR? 75 

bold and sweeping an assertion, which, like the above, is 
at every point diametrically opposed to the truth. I shall 
proceed to prove, and to establish beyond the shadow of a 
doubt, this heavy accusation against " the great expounder," 
by extracts from the records and publications to which he 
so solemnly, and yet so unscrupulously, appeals. 

I shall begin with the Convention that formed the Con- 
stitution itself. It will not be necessary to reproduce the 
language of Gouverneur Morris, one of the most celebrated 
men of that Convention, and one of the warmest advo- 
cates of a strong national government. We have already 
seen,* that he pronounced the Constitution ''a compact 
between the United States, each enjoying sov- 
ereign power." Indeed, in the Convention of 1787, he 
expressly declared, that the object was to form a " com- 
pact with other States;" and he afterwards declared, that 
" the thing had been done." Again, James Madison himself, 
" the father of the Constitution," and the most laborious 
member of the Convention of 1787, called it, as we have 
seen, "a pact" between the States in that Convention;! 
and from that day to the end of his life, Mr. Madison con- 
tinued to pronounce the new Constitution " a compact to 
which the States are the parties." In the Virginia ratifying 
Convention of 1788, in " the numbers of the Federalist," in 
the Virginia Eesolutions of ^98 and '99, in the Virginia 
Eeport of 1800, in his celebrated letter to Mr. Everett of 
1830; in one and all of these well-known public docu- 
ments, as well as in others from his pen, this illustrious 
architect of the Constitution most emphatically pro- 
nounced it ^' a compact to which the States are the par- 
ties." In the Virginia Eesolutions, a political formula 
which the American people, of all parties and all sec- 
tions, had sworn by for more than thirty years, Mr. 
Madison wrote for the legislature of his State : " This 
Assembly doth explicitly and peremptorily declare, that 

* Cliapter v. 



76 IS DAVIS A TRAITOR? 

it views the powers of the Federal Government, as resulting 
from the compact, to which the States are parties/' How 
completeh^^ then, was the very existence of Mr. Madi- 
son, and of all the great transactions in which he had 
borne so conspicuous a part, ignored by Mr. Webster in 
the bold and astounding assertion, that neither friend nor 
foe had ever considered the new Constitution as a " compact 
between the States." The venerable old man must^ indeed, 
have felt as he read the speech of Mr. Webster, that he 
was fast sinking into oblivion, and that all the great trans- 
actions of his life were fast being forgotten amid the blaze 
of new ideas. 

Accordingly, in a letter to Mr. Webster, called forth by 
the very speech in question, Mr. Madison once more raised 
his voice in favor of the one invariable doctrine of his life. 
" It is fortunate,'' says he, " in the letter referred to, " when 
disputed theories can be decided by undisputed facts ; and 
here the undisputed fact is, ''that the Constitution ivas 
made hy the people, hut as embodied into the several States, 
" who were parties to itf Again, in the same letter, he 
says : " The Constitution of the United States, being 
established by a competent authority, hij that of the sover- 
eign people of the several States, who were parties to it." 
Most fortunate is it, indeed, when disputed theories may be 
tested by undisputed facts ; but how infinitely unfortunate 
is it, when new and disputed theories begin to pass for 
every'thing, and indisputable facts for nothing! Nay, 
when those who cling to hitherto undisputed facts are 
accounted traitors, and visited with a merciless and a meas- 
ureless vengeance, by those who, having nothing better than 
disputed theories to stand on, are nevertheless backed by 
the possession of brute force sufficient to crush their oppo- 
nents, and silence the voice of truth ! 

All agree, says Mr. W^ebster, '" The Federalist," " the 
debates in the Conventions',' " the publications of friends 
and foes " — all agree, " that a change had been made from 



IS DAVIS A TRAITOR? 77 

a confederacy of States to a different system." Now^ there 
is James Wilson, inferior only to Madison and Hamilton in 
the influence he exerted in favor of the new Constitution, 
who declares, that the only object aimed at by the Con- 
vention of ^87, was to enable the States " to confederate 
anew on better principles ; " and if no more could be 
effected, he would agree to " a partial union of the States, 
with a door left open for the accession of the rest." 
Accordingly, it was finally agreed by the Convention, that 
nine States might form the new Union, with a door left 
open for the accession of the other four. In fact, eleven 
States confederated on the new principles ; and it was more 
than a year before the remaining two States acceded to 
the compact of the Constitution, and became members of 
the Union. 

Even Alexander Hamilton in that great authority, The 
Federalist, to which Mr. Webster so confidently appeals, 
is directly and flatly opposed to the bold and unscrupulous 
assertion of " the great expounder." If the new Consti- 
tution should be adopted, says he, the Union would " still 
be, in fact and in theory, an association of States, or a 
confederacy."* i\gain, in the eightieth number of the 
work, Hamilton calls the new Union " the Confederacy ;" 
putting the word in capital letters, in order that it may 
not be overlooked by the most superficial reader. If neces- 
sary, it might be shown by various other extracts, that 
Alexander Hamilton, while insiting on the adoption of 
the new Constitution in The Federalist, speaks of the 
new Union as a confederacy of States. How, then, could 
Mr I Webster avouch The Federalist to support the asser- 
tion, that " a change had been made from a confederacy 
to a different system ?" Was this in his character of " the 
great expounder," or of the great deceiver ? 

This appeal to the Federalist appears, if possible, still 
more wonderful, when viewed in connection with other 

* Federalist, No. ix. 



78 IS DAVIS A TRAITOR? 

numbers of the same work. Indeed, it was objected to 
the new Constitution by its enemies, that " it would make 
a change from a confederacy to a different system;'^ and 
this very objection is met and repelled in the pages of the 
Fedei-alist. ''will it be said/' demands the Federalist, 
" that the fundamental pri?iciples of the confederation were 
not within the purview of the Convention, and ought not 
to have been varied? I ask, what are these principles? 
Do they require, that in the establishment of the Constitu- 
tion, the States should be regarded as distinct and inde- 
pendent sovereigns? They are so regarded by the Con- 
stitution proposed." '•• Xow here the position of Mr. Web- 
ster, that the new Union was not a confederacy of States, 
that it was not made by the States " as distinct and inde- 
pendent sovereigns," but was ordained by "the people of 
the United States in the aggregate " as one nation ; is 
directly and emphatically negatived by the very authority 
to which he appeals in support of his monstrous heresy. 

Nor is this all. In the preceding number of the Feder- 
alist, it is said, " Each State, in ratifying the Constitution, 
is considered as a sovereign body, independent of all others, 
and only to be bound by its own voluntary act." 
Thus, according to the Federalist, the Constitution was 
ratified by " each State, as a sovereign body, independent 
of all others." No such thing, says Mr. AVebster, it was 
not ratified by the States at all, it was ordained by a power 
superior to the States, by the sovereign will of the whole 
people of the United States; and yet he boldly and 
unblushingly appeals to the Federalist in support of his 
assertion! Why did he not quote the Federalist? Nay, 
why did he not read the Federalist, before he ventured on 
such a position? 

Mr. Webster has, indeed, quoted one expression from 
the Federalist. " The fabric of American empire," says 
Hamilton, in the twenty-second number of the Federalist, 

* No. xl. 



IS DAVIS A TRAITOR? i'9 

^' ought to rest on the solid basis of the consent of the 
PEOPLE." After quoting these words, Mr. Webster adds, 
with his usual confidence, " Such is the language, sir, 
addressed to the people, while they yet had the Constitu- 
tion under consideration. The powers conferred on the 
new government were perfectly well understood to be 
conferred, not by any State, or the people of any State, 
but by the people of the United States." Now, if Mr. 
Webster had only paid more attention to the debates of 
the Convention of 1787, he might have escaped this egre- 
gious blunder, this gross perversion of the words of Alex- 
ander Hamilton. Nay, if he had only considered the 
three sentences which immediately precede the extract 
made by him, he would have seen that Hamilton was 
speaking to a very different question from that which had 
so fully engrossed and occupied his mind. He would have 
seen, that the language related, not to the question whether 
the Constitution ought to be ratified by the people of the 
States, or by the people of America as one nation; but to 
the question, whether it ought to be ratified by the Legis- 
latures, or by the people, of the several States. This was 
the question of the Convention of ^87; and this was the 
question to which its ablest member was speaking, when 
he said "the fabric of American empire ought to rest on 
the solid basis of the consent of the people." Eead the 
context, and this will be perfectly plain. " It has not a 
little contributed," says the context, " to the infirmities of 
the existing federal system, that it never had a ratification 
of the people. Eesting on no better foundation than the 
consent of the several Legislatures, it has been exposed to 
frequent and intricate questions concerning the validity 
of its powers ; and has, in some instances, given rise to the 
enormous doctrine of legislative repeal." Such is the con- 
text of Mr. Webster's very partial and one-sided extract. 
It shows that Hamilton was arguing the advantage of the 
new system over the old, just as it had been argued in the 



80 IS DAVIS A TRAITOR? 

Convention of 1787; because the old confederation rested 
on the consent of the Legislatures of the several States, 
whereas the new confederacy was to rest on the consent 
of the people of the several States. Hence it would be 
free from all doubts with respect to the power of " legisla- 
tive repeal." 

Alexander Hamilton certainly knew that the Constitu- 
tion was merely a proposal, or plan of government, and 
would so remain until it should be ratified by ^^ the Con- 
ventions of nine States;'^ and that then it would be bind- 
ing only " between the States so ratifying the same." For 
these are the words of the Constitution itself, as well as 
of his own formula of ratification in the Convention of 
1787. These nine States or more, thus leagued together 
by a solemn compact entered into by the people of the 
several States in their highest sovereign capacity, is " the 
solid basis" to which he refers; and which, like so many 
massive columns, were to bear up " the fabric of American 
empire." The consent of the whole people indeed! The 
majority of the whole voting population of the United 
States, which may be one thing to-day and another to- 
morrow, and which is bound by nothing but its own sov- 
ereign will and pleasure ! Surely, nothing could be less 
solid or stable, or less fit to support " the fabric of Ameri- 
can empire." Such a system were, indeed, more like Aris- 
tophincs' City of the Birds, floating in mid air, and tossed 
by the winds, than like the scheme of a rational being for 
the government of men. No conception could be more 
utterly inconsistent with all the well-known sentiments of 
Alexander Hamilton. 

But if, instead of perverting the high authority of the 
Federalist by wresting one particular passage from its 
context, Mr. "Webster had only read a little further, he 
would have discovered what was then " perfectly well 
understood " respecting the nature of the Constitution. 
He would have discovered, that it was, according to the 



IS DAVIS A TRAITOR? 81 

Federalist, established, not by "the people of the United 
States in the aggregate/' or as one nation, but by each of 
the States acting for itself alone. "The Constitution is to 
be founded/*' says the Federalist;^ " on the assent and rati- 
fication of the people of America, given by deputies elec- 
ted for the special purpose." This, too, is the language 
" addressed to the people, while they yet had the Consti- 
tution under consideration." Why, then, is not this lan- 
guage seized upon, and held up as proof positive, that the 
Constitution rested on the assent, " not of any State, or 
the people of any State," but on that of "the people of 
America?" The reason is plain. Though these words, 
taken by themselves, would have answered Mr. Webster's 
purpose better than his extract from the Federalist; yet 
are they immediately followed, in the same sentence, by 
an explanation^ which shows their meaning when used in 
the Federalist. " The Constitution is to be founded," says 
that highest of all authorities " on the assent and ratifica- 
tion of the people of ilmerica, given by deputies elected 
for the special purpose ; but," it is added, " this assent and 
ratification is to be given by the people, not as individuals 
comprising one entire nation, hut as composing the distinct 
and independent States to which they respectively belong. 
It is to he the assent and ratification of the several States, 
derived from the supreme authority in each State^the 
autlw itj/ of the people themselves. The act, therefore, estab- 
lishing the Constitution will not be a national, but a federal 
act." t ^ot so, says Mr. Webster, the Constitution was 
established not by a federal, but a national act; not by any 
State, or the people of any State, but by the whole people 
of the United States as one sovereign body; and yet he 
appeals to the Federalist in support of his doctrine ! 

" That it will be a federal, and not a national act," con- 
tinues the Federalist, " as these terms are understood by 
objectors, the act of the people, as forming so many inde- 

* No. xxxix. t Ibid. 



82 IS DAVIS A TRAITOR? 

pendent States, not as forming one aggregate nation, is 
obvious from this single consideration, that it is to result 
neither from the decision of a majority of the people of 
the Union, nor from that of a majority of the States. It 
must result from the unanimous assent of the several States 
that are parties to it, differing no otherwise from their 
ordinary assent than in its being expressed, not by the 
legislative authority, but by that of the people themselves. 
Were the people regarded in this transaction as forming 
one nation, the will of the majority of the whole people 
of the United States would bind the minority; in the 
same manner as the majority in each State must bind the 
minority ; and the will of the majority must be determined 
either by a comparison of the individual votes, or by con- 
sidering the will of the majority of the States, as evi- 
dences of the will of a majority of the people of the 
United States. Neither of these has been adopted. Each 
State, in ratifying the Constitution, is considered as a 
sovereign body, independent of all others, and only to be 
bound by its own voluntary act." Could language be 
more perfectly explicit? Yet, directly in the face of all 
this, or else in profound ignorance of all this, Mr. Web- 
ster appeals to the authority of the Federalist in favor of 
the very position which, as we have seen, -it so pointedly 
condemns. ISTay, in spite of the clear, explicit, and unan- 
swerable words of the Federalist, Mr. Webster appeals to 
that work to show, as a fact then " perfectly well under- 
stood," that the powers of the new government were to 
be conferred, or its Constitution established, not by the 
States, nor by the people of the States, considered as sov- 
ereign bodies, and each acting for itself, but by the whole 
people of the United States as one sovereign body or 
nation ! To show, in one word, that the Union was 
formed, not by an accession of the States, but by the one 
people of the United States acting as a unit ! " The 
great expounder " does not follow, he flatly contradicts, 



IS DAVIS A TKAITOR? 83 

the very work he appeals to as the highest of authorities; 
and that, too, in regard to the greatest of all the political 
questions that have agitated the people of America ! 

There were those, it is true, who regarded the new Con- 
stitution as the fundamental, or organic law, of one great 
consolidated government. But these were its enemies. 
They represented it as such because they wished it to be 
rejected, and because they knew no other objection would 
render it so obnoxious to the people of the States. It is 
well known, indeed, that the greatest difficulty in the way 
of the new Union was the jealousy of the central power, 
which the several States had long entertained. This jeal- 
ousy was so great in the States of New York and of Vir- 
ginia, that when their Conventions met to ratify or to 
reject the Constitution, it is well understood, and admit- 
ted, that they were both opposed to the new grant of 
powers. The State-Rights men in both Conventions, who, 
at first, were in favor of rejecting the Constitution, were 
in a majority, as is well known^ and fully conceded. It 
was only by the herculean labors of Alexander Hamilton, 
that the Conventions of New York were, at last, induced 
to ratify it by a majority of three votes. In like man- 
ner, the labors, the management, and the eloquence of 
Mr. Madison, succeeded, finally, after a long and desperate 
struggle, in carrying it in the Convention of Virginia by 
the small majority of ten votes. The result was long 
doubtful in both Conventions. 

Patrick Henry, in the ratifying Convention of Virginia, 
put forth all his powers to cause the new Constitution to 
be rejected. His appeals to the jealousy of the States with 
respect to the power of the Central Government were tre- 
mendous. He dwelt, particularly, on the words of the 
preamble, " We, the people of the United States,'^ to show 
that his most fatal objection to the new Constitution was 
well founded ; and he added, " States are the characteristic 
and soul of a confederacy. If the States be not the agents 



84 IS DAVIS A TRAITOR? 

of this compact, it must be one great consolidated govern- 
ment of the people of the United States." He insisted 
that it would be so. But Patrick Henry, it should be 
remembered, was not a member of the Convention of 1787, 
and he was an enemy of the new Constitution. His mind 
was fertile and overflowing with objections. If he had 
known the history of the words, "We, the people of the 
United States," as it appears in the debates of the Con- 
vention, which had not then been published, he would 
have seen, that "We, the people," really meant "We, the 
States; or We, the Convention," acting in the name and 
by the authority of the sovereign people of the several 
States.* Or, if he had compared the words in question 
with the seventh Article of the Constitution, he would 
have seen, that the new Constitution was to be established 
by the States, and was to be binding only "between the 
States so ratifying the same." But as the enemy, and not 
the advocate, of the new Constitution, he labored to enforce 
his objection to it, rather than to consider and weigh its 
words, or explain its real meaning to the Convention. 

His objection would, no doubt, have proved fatal to the 
new Constitution, but for the presence and the power of 
James Madison; who met the great objection of Patrick 
Henry, and silenced much of the apprehension which his 
eloquence had created. He was known to have been the 
most diligent and active member of the Convention that 
formed the Constitution; and was supposed, therefore, to 
understand its real import better than any man in the 
ratifying Convention of Virginia. His position, and his 
means of information, certainly gave him a great advan- 
tage over his eloquent rival, Patrick Henry. In his reply 
to Mr. Henry, he explained the words "We, the people," 
precisely as he had before explained them in the Fed- 
eralist. He said : "The parties to it were the people, but 
not the people as composing one great society, but the 

* See chap. x. 



IS DAVIS A TRAITOR? 85 

people as composing thirteen sovereignties." Again: "If 
it were a consolidated government/^ said he, " the assent of 
a majority of the people would be sufficient to establish 
it. But it was to be binding on the people of a State only 
ly their oivn separate consent." This argument, founded 
on a well-known fact, was absolutely unanswerable. 

Yet Mr. Justice Story has, two or three times, quoted 
the words of Patrick Henry in the Virginia Convention, 
as if they were a most valuable authority, without a single 
solitary word in relation to the unanswerable reply of Mr. 
Madison ! On this point he is profoundly silent ! That is 
to say, he construes the Constitution, not as it was under- 
stood by its framers and its friends, but as it was misrepre- 
sented by its enemies, in order to cause its rejection ! 
He holds up the words of the one, as a great authority, 
and he does not let the reader of his most learned Com- 
mentaries know the language of the other in reply ! Was 
that honest? 

^N'or is this all. He construes the preamble to the Con- 
stitution, so as to make it contradict itself. "We, the 
people of the United States, in order to form a more per- 
fect Union." A Union of what — of individuals, or of 
States? Does not every man under the sun know this 
means a Union of States, and not of individuals ? Or why 
speak of the United States at all? Or why, in the same 
preamble, say " this Constitution for the United States of 
America ?" 

I object to the Massachusetts interpretation of the first 
clause of the preamble to the Constitution. 1. Because 
it falsifies the facts of history respecting the mode of its 
ratification, which was by the several States in Convention 
assembled, each acting for itself alone, " as a sovereign 
body, independent of all others, and to be bound only by 
its own voluntary act," and not by the people of America 
as one nation. 2. Because it makes these words, "We, 
the people," contradict the seventh Article of the Consti-- 



So IS DAVIS A TRAITOR? 

tution; an Article which, historically considered, has pre- 
cisely the same origin and the same sense with those words 
themselves. 3. Because it attaches to these words a dif- 
ferent sense from that attached to them by the Convention 
of 1787, as seen in the debates which gave rise to them. 
4. Because it contradicts the sense given to these words by 
Gouverneur Morris, by James Madison, and by other 
framers of the Constitution of the United States. 5. Be- 
cause, not satisfied with making this clause contradict every- 
thing else, it makes it contradict itself, or at least the very 
next clause in the same sentence with itself. 

But there is another thing which Mr. Webster could 
not find in " all contemporary history," nor in '^ the 
numbers of the Federalist/' nor in "the publications of 
friends or foes." In none of these various productions 
or publications did any one intimate that the new Consti- 
tution was but another compact between the States in their 
sovereign capacity. I do not find such an opinion advanced 
in a single instance. Hence, after so careful, so con- 
scientious, and so laborious a search, he feels perfectly justi- 
fied in the assertion, that "the Constitution is not a 
compact between sovereign States." This is, indeed, the 
very title of his speech in 1833, and the great burden of 
all his eloquence. Yet, with no very great research, I 
have found, and exhibited in the preceding pages, a mul- 
titude of instances in which " such an opinion is advanced." 
'Not was it at all necessary to ransack " all contemporary 
history " for this purpose. The Federalist itself, the great 
political classic of America, has already furnished several 
such instances. It teaches us, as we have seen, that " each 
State, in ratifying the Constitution, is considered as a 
sovereign body, independent of all others; " * and also that, 
in the establishment of the Constitution, the States are 
" regarded as distinct and independent sovereigns." \ 
But this, it may be said, does not use the term compact. 
* No. xxxix, t xl. 



IS DAVIS A TRAITOR? 87 

Very well. The same number of the Federalist, which 
says that the Constitution was to be established by each 
State^ as a sovereign body, independent of all others, 
calls that Constitution " the compact." Thus, according 
to the Federalist, the Constitution, the compact, was 
established by " distinct and independent sovereigns." 

But numbers XXXIX and XL were written by Mr. 
Madison. Every one knows, that he always regarded the 
Constitution as a compact between " distinct and independ- 
ent sovereigns." That is, every one at all acquainted with 
the political history of the United States, except Mr. Jus- 
tice Story and Mr. Webster during the great struggle of 
1833. It must be conceded, then, in spite of the sweeping 
assertion of Mr. Webster, that Madison held the Constitu- 
tion to be " a compact between the States in their sover- 
eign capacity," and that, too, in the pages of the Federalist 
as well as elsewhere. A rather conspicuous instance to be 
overlooked by one, whose search had been so very careful 
and so very conscientious ! Nor does this instance stand 
alone. Alexander Hamilton is the great writer of the 
Federalist. Out of its existing eighty-five numbers, no 
less than fifty proceeded from his pen; five from the pen 
of Jay, and thirty from that of Madison ; and, in the opin- 
ion of the Xorth, the numbers of Hamilton surpass those 
of Madison far more in quality than in quantity. In the 
estimation of the North, indeed, Hamilton is the one sub- 
lime architect of the Constitution, to whom it owes " every 
element of its durability and beauty." What, then, does 
Hamilton say about the nature of the Constitution? Does 
he call it a compact between States, or does he allege that 
it was ordained by the people of the United States as one 
sovereign nation? I do not wish to shock any one. I 
am aware, it will be regarded, by many of the followers 
of Story, as akin to sacrilege to charge Alexander Hamil- 
ton with having entertained the treasonable opinion, that 
the Constitution was a compact between the States. But 



88 IS DAVIS A TRAITOR? 

as we have, at the South, no grand manufactory of opin- 
ions to suppl}^ "all contemporary history/' so we must 
take the sentiments of Alexander Hamilton just as we 
find them, not in the traditions of the North, but in his 
own published productions. The simple truth is, then, 
that he calls the provisions of the Constitution of 1787, 
" The compacts which are to embrace thirteen distinct 
States, in a common bond of amity and Union f and adds, 
these compacts must " necessarily be compromises of as 
many dissimilar interests and inclinations." * Thus, ac- 
cording to Hamilton, the " thirteen distinct States " made 
compromises with each other, and adopted them as " the 
compacts " of the new Union ! 

Nor is this all. On the following page, he says : " The 
moment an alteration is made in the present plan, it 
becomes, to the purpose of adoption, a new one, atid must 
undergo a new decision of each State." \ Indeed, even Ham- 
ilton, the great consolidationist of his day, never dreamed 
of any other mode of adopting the new Constitution^ than 
by " a decision of each State." Hence he continues, " To 
its complete establishment throughout the Union, it will 
therefore require the concurrence of thirteen States." 
Again, he says, " Every Constitution for the United States 
must inevitably consist of a great variety of particulars, 
in which thirteen Independent States art to be accom- 
modated in their interests or opinions of interest." % 

" Hence the necessity of moulding and arranging all the 
particulars which are to compose the whole, in such a 
manner, as to satisfy all the parties to the compact." That 
is, in such a manner as to satisfy the thirteen Independ- 
ent States, who are " the parties to the Compact." § 
Well may the great usurpers of the North exclaim, " Et tu 
Brute ! " 

The whole Federalist is in perfect harmony with this 
key note of the system it recommended to the people 

* Federalist, No. Ixxxv. f Ibid. % Ibid. § Ibid. 



IS DAVIS A TRAITOR; 89 

By Hamilton, the States are called " the Members of the 
Union ;" * the units of which it is composed, and not the 
fractions into which it is divided. Again, he speaks of 
" the Union, and of its members," f by which, as appears 
from the context, he evidently means the States. In like 
manner, Mr. Madison speaks of the new Union as " Con- 
federated States." X Again, he says, " Instead of report- 
ing a plan requiring the confirmation of all the States, they 
reported a plan, which is to be confirmed, and may be 
carried into effect, by nine States only."§ Indeed, similar 
testimonies to the fact, that the States entered into the 
compact of the Constitution, are spread over the pages 
of the Federalist, as well as over " all contemporary his- 
tory." 

I might easily produce a hundred other proofs of the same 
fact from " the Federalist,'' from " the publications of 
friends and foes," from the " debates of the Convention," 
without the aid of " all contemporary history." But I am 
sick of dealing with such unbounded and disgusting license 
of assertion. 

The truth is, that Mr. Webster was a mere theorist^ nay, 
a mere party sophist. He took an oath to support, but 
not to study, the Constitution. Hence, instead of a close, 
patient, and honest study of the political history of the 
country and of the Constitution; he merely looked into 
the great original fountains of information to furnish him- 
self out with the weapons and the armor of a party cham- 
pion, or prize fighter. If he ever read any of the docu- 
ments to which he so confidently appeals, he must have 
read them with a veil over his eyes ; or else, in the heat of 
debate, he must have forgotten all his first lessons in the 
political history of his country. From his own generation, 
he won the proud title of " the great expounder ;" yet, after 
his appeal to posterity shall have been decided, he will be 
pronounced " the great deceiver." 

* No. xlil t No. ix. t No. xxxvi. § No. xl. 7 



CHAPTER XII. 

The Convention of 1787 describes the Constitution formed by them 
as a Compact between the States. 

The Oonvention of 1787, in their letter describing the 
formation of the new Constitution, use precisely the polit- 
ical formula employed by Sidney, Locke, and other cele- 
brated authors, to define a social compact. Hobbes was 
the first to reduce this theory to a scientific form; and it 
is no where more accurately defined than by himself. 
" Each citizen," says he, " compacting with his fellow, says 
thus : I convey my right on this party, upon condition 
that you pass yours to the same; by which means, that right 
which every man had before to use his faculties to his 
own advantage, is now wholly translated on some certain 
man or council for the common benefit." * Precisely the 
same idea is conveyed by the formula of 1787: "indivi- 
duals entering into society must give up a share of liberty 
to preserve the rest; and the great difficulty is, as to 
what rights should be delegated to the governing agents 
for the common benefit, and what right should be retained 
by the individual. This is the social compact as defined 
by Hobbes himself; and although it was an imaginary 
transaction in regard to the governments of the Old 
World, it became a reality in relation to the solemnly 
enacted Constitutions of America. 

But, in the letter of the Convention of 1787, it comes 
before us in a new relation. In Hobbes, " each citizen 

* Hobbes' Works, vol. ii., p. 91. 

[90] 



IS DAVIS A TRAITOR? 91 

compacts with his fellow," as in the formation of our 
State Constitutions; whereas, in the letter before us, each 
State compacts with her sister States. " It is obviously 
impracticable," says the Convention,* " in the Federal 
Government of these States to secure all rights of inde- 
pendent sovereignty to each, and yet provide for the 
honor and safety of all. Individuals entering into society 
must give up a share of liberty to preserve the rest." .... 
" It is at all times difficult to draw with precision the line 
between those rights which must be surrendered, and 
those which may be reserved; and on the present occa- 
sion this difficulty was increased by a difference among 
the several States [the parties about to enter into a new 
Union] as to their situation, extent, habits, and particular 
interests." 

Yet, in the face of all this, the whole school of Massa- 
chusetts politicians, with Story and Webster at their head, 
assert, that the Federal Government is a union, not of 
States, but only of individual citizens ! Wlio, before or be- 
side these gross perverters of the most palpable truth, ever 
applied the term "Union" to a government of indivi- 
duals ? ^Yho ever heard of the Union of Massachusetts, or 
of ;N'ew York, or of Virginia? The truth is, that this 
word is only applicable to a confederation of States; and 
hence, even Alexander Hamilton, after he had failed to 
establish a consolidated national government, familiarly 
called the new Union " a confederacy."! It was reserved 
for a later day, and for a bolder period in the progress of 
triumphant error, to scout this as an unconstitutional idea ; 
and to declare, by way of proof, that " there is no language 
in the Constitution applicable to a confederation of 
States." X Is not the term '' Union," applicable to a con- 
federation of States, or is it only applicable to a social 
combination of individuals? Does not the Constitution 

* See their Letter. ^Federalist, No. Ixxx. 

% Webster's Works, vol. iii., p. 470. Great speech of 1833. 



92 IS DAVIS A TRAITOR? 

speak of " the United States," or the States united ? 
Nay, does it not expressly declare, that it shall be binding 
" between the States so ratifying the same ?" Or, if the 
Constitution itself has been silent^ does not the letter of 
1787, which was struck in the same mint with that solemn 
compact, declare that each State, on entering into the new 
Union, give up a share of its "" rights of independent 
sovereignty," in order to secure the rest? 

I shall now take leave of the proposition, that the Consti- 
tution was a compact between the States of the Union; a 
proposition far too plain for argument, if the clearest facts 
of history had only been permitted to speak for them- 
selves. " I remember," says Mr. Webster, " to have heard 
Chief Justice Marshall ask counsel, who was insisting 
upon the authority of an act of legislation, if lie thought 
an act of legislation could create or destroy a fact, or change 
the truth of history?'' " Would it altar the fact," said he, 
" if a legislature should solemnly enact, that Mr. Hume 
never wrote the History of England ?" * "A legislature 
may alter the law," continues Mr. Webster, "but no 
power can reverse a fact." f Hence, if the Convention of 
1787 had expressly declared, that the Constitution was 
ordained by " the people of the United States in the aggre- 
gate/' or by the people of America as one nation, this 
would not have destroyed the fact, that it was ratified by 
each State for itself, and that each State was bound only 
by " its own voluntary act." If the Convention had 
been lost to all decency, it might indeed have stamped 
such a falsehood on the face of the Constitution; but this 
would not have " changed the truth of history." 

Story and Webster lay great stress, as we have seen,t 
on the fact, that the first resolution passed by the Conven- 
tion of '87 declared, that a National Government ought to 
be established. But, by a gross suppressio veri, they con- 
ceal the fact, that this resolution was afterward taken up, 

* Works, vol. ii., p. 334. t Cliap. iv. 



IS DAVIS A TRAITOR? 93 

and the term national deliberately dropped by the unani- 
mous decision of the Convention. They also conceal the 
fact, that after the Constitution was actually formed, the 
Convention called the work of their hands, not " a National 
Government/' but " The Federal Government of these 
States/' This name was given, not before, but after, the 
Convention was full; not before the first article of the 
Constitution was adopted, but after the whole instrument 
had been completely finished; and it was given, too, by 
" the unanimous order of the Convention." * Yet, in con- 
tempt of all this. Story and Webster say, that the Con- 
vention made, not a " Federal Government of States," but 
" a National Government " for the one people of America, 
and they prove this, by the exploded resolution passed by 
them ! That is, they still insist on the name expressly 
rejected by the Convention, as if it had received the sanc- 
tion of their high authority; and that, too, in direct oppo- 
sition to the name actually given by them ! Could any 
style of reasoning, if reasoning it may be called, be more 
utterly contemptible? 

* See their Letter to Congress. 



C H A n^ E R XIII. 

Mr. Wehstcr versiis Mr. WCbster. 

In the preceding chapter, Mr. Webster has been con- 
fronted with reason and authority; showing that "the 
greatest intellectual effort of his life" is merely a thing 
of words. In this, he shall be confronted with himself 
for, in truth, he is at war with himself, as well as with 
all the great founders of the Constitution of the United 
States. He is, in fact, too much for himself; and the 
great speech which, in 1833, he reared with so much pains 
and consummate skill as a rhetorician, he has literally torn 
to tatters. 

" If the States be parties " [to the Constitution] , asks 
Mr. Webster, in that speech, with an air of great confi- 
dence, "where are their covenants and stipulations? 
And where are their rights, covenants, and stipulations 
expressed? The States engage for nothing, they promise 
nothing." On reading this passage, one is naturally 
inclined to ask, did Mr. Webster never hear of " the grand 
compromises of the Constitution " about which so much 
has been written? But what is a compromise, if it is not 
a mutual agreement, founded on the mutual concessions 
of the parties to some conflict of opinions or interests? 
Does not the very term compromise mean mutual promises 
or pledges? Look at the large and small States in the 
Convention of 1787. We see, in that memorable struggle 
for power, the large States insisting on a large or pro- 
portionate representation of themselves in both branches 
of the federal legislature; and we see the small States, 
with equal pertinacity, clinging to the idea of an equal 

[94] 



IS DAVIS A TRAITOR? 95 

representation in both. The struggle is fierce and obsti- 
nate. Tlie Convention is on the point of dissolution, and 
its hopes are almost extinguished. But, a compromise is 
suggested, considered, argued, and finally adopted ; accord- 
ing to which there is to be a proportionate representation 
of each State in one branch of the federal legislature, and 
an equal representation in the other. These are the terms, 
" the covenants," " the stipulations," on which the two 
classes of States agree to unite; these are their mutual 
promises. 

The same thing is true in regard to all the other " grand 
compromises of the Constitution." It seems, indeed, that 
Mr. Webster could not well speak of these compromises, 
without using some such word as terms, or covenants, or 
promises, or stipulations. Accordingly, if we turn to the 
general index to his works, in order to see how he would 
speak of the compromises of the Constitution; we shall 
be led to make a very curious discovery, and one which 
is intimately connected with an interesting passage of his 
political life. It will conduct us to a scene, in which " the 
beautiful vase," then "well known throughout the coun- 
try as the Webster Vase," was presented to that cele- 
brated statesman. Several thousand persons "had assem- 
bled at the Odeon, in Boston," in order to witness the 
presentation of that costly memorial, and to hear the 
reply of the great orator. " The Vase," we are told " was 
placed on a pedestal covered with the American flag, and 
contained on its side the following inscription : 

PRESENTED TO 

DANIEL WEBSTER, 

The Defender of the Constitution, 

BY THE CITIZENS OF BOSTON. 
October 12, 1835." 

Now this beautiful vase, so rich in its material and so 
exquisite in its workmanship, was presented to Mr. Web- 



96 IS DAVIS A TRAITOR? 

ster in honor of his great speech of 1833; in which he 
demonstrated to the entire satisfaction of the New Eng- 
land universe, that it is absurd to call the Constitution " a 
compact/' or to speak of its " stipulations." Now I shall 
produce one extract from this speech at the Odeon, not 
only on account of the striking contrast it presents to the 
doctrine of the speech of 1833, whose glories thousands 
were there assembled to celebrate, but also on account of 
the simple, solid, and important truth it contains. " The 
Constitution,^' says Mr. AYebster, in that speech, "i5 
founded on compromises, and the most perfect and absolute 
good faith, in regard to every stipulation of this 

KIND CONTAINED IN IT IS INDISPENSABLE TO ITS PRESERVA- 
TION. Every attempt to accomplish even the best purpose, 
every attempt to grasp that whicli is regarded as an 
immediate good, in violation of these stipulations, is 

FULL OF DANGER TO THE WHOLE CONSTITUTION." * Such 

glaring inconsistencies, and there are many of them in the 
writings of the great orator, will be flaws and cracks in the 
vase of his reputation as long as his name is known. 

Nor is this the only instance in which Mr. Webster has 
spoken of the stipulations of the Constitution. '^^All the 
stipulations r says he, " contained in the Constitution in 
favor of the slave States ought to be fulfilled." f Here, 
then, are stipulations in favor of States, and made by States. 
" Slavery," says he, " as it exists in the States, is beyond 
the reach of Congress. It is a concern of the States them- 
selves; they have never submitted it to Congress, and Con- 
gress has no rightful power over it." J Nor has the Federal 
Government the rightful power over anytliing in relation to 
the States; unless this power was granted by the States, 
and so became one of the stipulation's in the new "Arti- 
cles of Union," as the Constitution is called throughout 
the debates in the Convention of 1787.§ 

* Works, vol. 1., p. 331. t Works, vol. v., p. 347. t Ibid. 
§ Madison Papers, pp. 732, 734, 761, 861, 1118,1221, 1225. 



IS DAVIS A TRAITOR? 97 

The power of the Federal Government over commerce 
has been very justly called " the corner stone of the whole 
system." The Constitution originated, as we have seen, 
in the desire to establish a uniform and permanent system 
of commercial regulations, by which the hostile legislation 
of Europe might be resisted, and the havoc of the inter- 
national legislation of the States repaired. Whence did this 
great power, or rather this great system of powers, ema- 
nate? "The States" says Mr. Webster, ''delegated their 
whole authoritij over imports to the general government/' * 
In like manner, every other power of the vast superstructure 
reared upon that corner stone, was delegated or conferred 
on the Federal Government by the States in the "Articles 
of Union." 

Mr. Webster and Mr. Justice Story say the Constitution 
speaks the language of authority to the States, saying you 
shall do this, or you shall not do that, and eschews the 
verbal forms of a compact. Yery great stress is laid on 
this point. The Constitution, say they, is not " a compact 
between States," it is " the supreme law," as if the two 
things were utterly incompatible. But it is a rather unfor- 
tunate circumstance for this argument, that precisely the 
same language of authority is used in the old Articles of 
Confederation, which is universally admitted to have been 
a compact. '^ No State shall," is the style of the old Arti- 
cles of Union," f as well as of the new ; in this respect, 
they are perfectly parallel. 

But here, again, we may appeal from Philip drunk to 
Philip sober, from Webster intoxicated with the fumes of 
a false theory of power to Webster under the influence of 
a simple view of truth. After having read the terms on 
which Texas was admitted into the Union, Mr. Webster 
asks, " Now what is here stipulated, enacted, secured ?" thus 

* Works, vol. ii, p. 318. These words are quoted by Mr. Web- 
ster, with his expressed approbation. f See Articles v. and vi. 



98 IS DAVIS A TRAITOR? 

admitting that the stipulations were enactments, or that 
the contract was a law. Nor is this all. For, having speci- 
fied the stipulations in this case, he proceeds to say, " I 
know no form of legislation which can strengthen this. I 
know no mode of recognition that can add a tittle to the 
weight of it. I listened respectfully to the resolutions of my 
friend from Tennessee. He proposed to recognize that stipu- 
lation with Texas. But any additional recognition would 
weaken the force of it; because it stands here on the ground 
of a contract, a thing done for a consideration. It is a law 
FOUNDED ON A CONTRACT WITH Texas." There is, then, 
after all, no incompatibility between a contract and a law \ 
On the contrary, the very highest form of legislation may be 
that of a compact between sovereigns States. It was thus, 
that Texas came into the Union; and, in consideration of 
certain things promised to her, agreed to accept the Consti- 
tution of the United States as the supreme law of the land. 
It was thus also, that the original thirteen States, in view 
of certain advantages expected by them, and held out to 
til em, conferred various powers on the Federal Govern- 
ment to be exercised for the common good. Each State, 
as it adopted the Constitution, virtually said to every 
other, I will abstain from the exercise of certain powers, 
and grant or delegate certain powers, according to all the 
stipulations of this instrument, provided you will do the 
same thing. I will neither coin money, nor emit bills of 
credit, nor enact laws impairing the obligation of contracts, 
nor do any other thing, which, in the view of the authors 
of the Constitution, has proved so injurious to the best 
interests of the country, provided you will abstain from 
the exercise of the same powers. And I will, on the other 
hand, consent that the General Government may regulate 
commerce, levy taxes, borrow money on the common 
credit, wage war, conclude peace, and do all acts and things 
as stipulated in the new "Articles of Union," provided 
you will delegate the same powers. Such was " the con- 



IS DAVIS A TRAITOR? 9^ 

tract, the thing done for a consideration." The great stip- 
ulation of all was, that the Constitution should be the 
supreme law of the land; for that became the supreme 
law only by the mutual agreement of the States. But 
why argue a point so plain? How any man can look the 
Constitution in the face, or read its history, and then ask, 
where are its stipulations? is more than I can conceive. 
It does seem to me, that he might almost as well look into 
the broad blaze of noon, and then ask. If the sun really 
shines, where are its rays? 

But if the Constitution is not a compact for the North, 
it is at least held to be binding, as such, on the South. 
The free States, said Mr. Webster in 1850, " complain 
that, instead of slavery being regarded as an evil, as it 
was then, it is now regarded by the South as an insti- 
tution to be cherished, and preserved, and extended." * 
" The North finds itself," he continues, " in regard to 
the relative influence of the South and the North, of the 
free States and the slave States, where it did not expect 
to find itself, when they agreed to the compact of the Con- 
stitution." f Thus, after all, the States agreed to 

THE COMPACT OF THE CONSTITUTIOX, Mr. WeBSTER HIM- 
SELF BEING THE JUDGE. 

Again, in 1851, Mr. Webster says : " When the Consti- 
tution was framed, its framers, and the people who adopted 
it, came to a clear, express, unquestionable stipulation 
and compact." 4: In the same speech, he says : " These 
States passed acts defeating the law of Congress, as far as 
it was in their power to defeat it. Those of them to 
whom I refer, not all, but several, nullified the law of 1793. 
They said, in effect, ' we will not execute it. No runaway 
slave shall be restored.' Thus the law became a dead 
letter. But here was the Constitution and compact still 
binding; here was the stipulation, as solemn as words 

* Works, vol. v., p. 359. t Webster's Works, vol. v., p. 359. 
% Ibid, vol. ii,,p. 574. 



100 IS DAVIS A TRAITOR? 

could form it, and which every member of Congress, ever}^ 
officer of the general government, every officer of the State 
government, from governors down to constables, is sworn 
to support." * Thus, in 1850 and 1851, it appears that Mr. 
Webster had as completely forgotten "the greatest intel- 
lectual effort of his life," as in 1833 he had forgotten all 
the great intellectual efforts of Mr. Madison's life. The 
truth is, that Mr. Webster had become alarmed at the 
condition of the country; because the North, which he 
had taught to deny that the Constitution is a compact, 
seemed resolved to reduce his theory to practice and give 
all its stipulations to the winds, provided they only stood 
in the way of their passions. Many of his former friends 
had, indeed, deserted and denounced him, because he 
would not go all lengths with them in disregarding the 
most solemn compact of the Constitution, which all had 
sworn to support. Hence, he wished to retrace his steps; 
but he could not lay the mighty spirit of insubordination 
and rebellion which he had helped to arouse in the North. 
He could only plead, expostulate, and denounce in return. 

Accordingly, in the speech just quoted, he says : " It 
has been said in the States of New York, Massachusetts, 
and Ohio, over and over again, that the law shall not be 
executed. That was the language of Conventions in 
Worcester, Massachusetts; in Syracuse, New York; and 
elsewhere. And for this they pledged their lives, their 
fortunes, and their sacred honors. Now, gentlemen, these 
proceedings, I say it upon my professional reputation, 
are distinctly treasonable. Resolutions passed in Ohio, 
certain resolutions in New York, and in Conventions held 
in Boston, are distinctly treasonable. And the act of 
taking away Shadrick from the public authorities in Bos- 
ton, and sending him off, was an act of clear treason." f 

The spirit of tlie resolutions which are here so emphati- 
cally denounced by Mr. Webster, afterward seized whole 

* VViebster's Works, vol. ii, p. 575. f Ibid. p. 577. 



IS DAVIS A TRAITOR? 101 

States, and controlled their legislation. In fourteen of 
the Northern States, indeed, laws were enacted to pre- 
vent the execution of the law of Congress. These laws, 
as Mr. Webster himself, if living^ would have said, were 
" distinctly treasonable." They came directly into con- 
flict with the law of Congress, and nullified the compact 
of the Constitution relative to fugitive slaves. What 
shall we say then? Was secession, under such circum- 
stances, treason? Was it rebellion? Mr. Webster has, in 
one of his speeches, laid down a principle which never 
has been, and never can be, controverted. He says : " I 
do not hesitate to say and repeat, that if the Northern 
States refuse wilfully and deliberately to carry into effect 
that part of the Constitution which respects the restora- 
tion of fugitive slaves, the South would be no longer 
bound to keep the compact. A bargain broken on one 
side is broken on all sides." I have said, that this is a 
principle of truth and justice, which never has been, and 
never can be denied. It was, indeed, precisely the prin- 
ciple which governed the Convention of 1787 in with- 
drawing from the first compact between the States. I do 
not mean to say, however, that this great principle of 
truth and justice may not be practically denied. In fact, 
the Northern power has not only claimed, but exercised, 
the right to trample the compact of the Constitution 
under foot ; and, at the same time, to visit with fire, sword, 
desolation, and ruin, those who merely wished to with- 
draw from the broken thing, and let it alone. 

According to the doctrine laid down by Story and Web- 
ster, if a compact between States assign no term for its 
continuance, then the States have a right to secede from 
it at pleasure.* This doctrine is, no doubt, perfectly true. 
But precisely such was the compact from which the South- 
ern States wished to withdraw; no period was prescribed 
for its continuance. Yet the North, who had trampled it 

* See Chapter ii. 



102 IS DAVIS A TRAITOR? 

under foot^ punished the South with the most terrible of 
all wars; because she was pleased to regard secession as a 
Adolation of that " most sacred compact/' 

Xo man, as we have seen, could well be more inconsist- 
ent on any subject, than " the great expounder " was in 
relation to the most important of all questions respecting 
the Constitution. It was, with him, either a compact 
between the States, or not a compact between the States, 
according to the exigencies of the occasion. He could be 
equally eloquent on both sides of the question. He com- 
plained, in 1850, that the South had changed her opinions 
on the subject of slavery. Might not the South complain, 
that he had no opinions, or at least no convictions, to 
change? The man w^ho really seeks the truth, and, when 
found, clings to it as the choicest treasure of his soul, may 
well leave his consistency to take care of itself. But the 
man who seeks place, or power, or popularity more than 
the truth, should indeed have a good memory. The one 
may, and indeed will, sometimes change his opinions, but 
then, in the midst of all his changes, he will be ever true, 
like the needle, which only turns until it finds the pole. 
Whereas the other, in his variations, is like the weather- 
cock, which shifts with the breeze of the passing hour, and 
never finds a point of permanent rest. Even the intellect 
of a Webster, where the moral man is deficient, can fur- 
nish no exemption from this law of retributive justice. 

Mr. Webster's real opinion, however, seems to have 
been that the Constitution was a compact between the 
States. His great speech of 1833 may have convinced 
others; it certainly did not convince himself; for during 
the remainder of his life, he habitually and constantly 
spoke of the Constitution as the compact formed by the 
States. Especially after his race was nearly run, and, 
instead of the dazzling prize of the Presidency, he saw 
before him the darkness of the grave, and the still greater 



IS DAVIS A TRAITOR? 103 

darkness that threatened his native land with ruin; he 
raised the last solemn utterances of his mighty voice in 
behalf of " the compact of the Constitution ;" declaring 
that as it had been " deliberately entered into by the 
States/^ so the States should religiously observe '' all its 
stipulations." 



CHAPTER XI \^ 

The absurdities floiring from the Doctrine that the Constitution is 
not a Compact heticeen the States, hut icas made by the People 
of America as one Nation. 

Whex I come to consider " the sovereignty of the peo- 
ple/' about which so much has been said, we shall see the 
fallacy of the position, which is everywhere assumed by 
Mr. Webster and his school, that "the aggregate com- 
munity, the collected will of the people, is sovereign." * 
"We shall then see, that this doctrine is utterly without 
foundation in history, and without support from reason. 
On the contrary, it will then be rendered manifest, that the 
people of America have never existed as one nation, 
clothed with sovereign authority; an idea which has no 
foundation in fact, and which has grown out of the popular 
use of language and the passions of politicians. But, at 
present, I merely wish to point out a few of the absurdities 
flowing from tliis doctrine, that the Constitution was 
ordained by " the aggregate community, the collected will 
of the people " of America, acting as one sovereign politi- 
cal society. This argument alone, this reductio ad absur- 
dum, is amply sufficient, unless I am greatly mistaken, to 
shatter that already shattered hypothesis. 

Mr. Justice Story, quoting the Declaration of Independ- 
ence, says: "It is the right of the people, (plainly 
intending the majority of the people.) to alter, or to abolish 
it, and to institute a new government, laying its foundation 
on such principles, and organizing its powers in such forms, 
as to them shall seem most likely to effect their safety and 

* Works, vol. vi., p. 222. 

[104] 



1^ 

IS DAVIS A TRAITOR? 105 

happiness/' * Xow this is what is meant by the sover- 
eignty of the people in America. But will any one contend, 
that the people of the United States, that is, a majority of 
them, may alter, or amend, the government of the Union? 
If they are, indeed, one people in the political sense of the 
word, then are they sovereign ; and if as such they made the 
Constitution of the United States, then, according to all our 
American ideas and doctrines, they have the right to alter 
or amend that Constitution at their pleasure. Nay, more ; 
they have the right to pull down the existing government, 
and to set up a new one in its place. But who will accept 
such a consequence? This right of sovereignty, if it 
exist, or if the one people exist to whom it naturally 
belongs, it is, according to the universally received doc- 
trine of this continent, inherent and inalienable. No laws 
or constitutions can take it away, or abridge and limit its 
exercise. Who will say, then, that the people of the United 
States, " plainly meaning the majority of them," have 
such a right or authority? No one. Plainly and inevita- 
bly as this consequence flows from the fundamental posi- 
tion of Story and Webster, that the sovereign people of 
America ordained the Constitution, it will be avowed by 
no one, who has any reputation to lose, and who has the 
least respect for the reputation he possesses. Mr. Lincoln 
has avowed this consequence. But in this instance, as in 
many others, his logic has taken advantage of his want of 
information. 

This consequence flows so naturally and so necessarily 
from the premises, that Mr. Justice Story has, in one place, 
inadvertently drawn it; or rather it has incidentally 
drawn itself. " The people of the United States," says 
he, "have a right to abolish, or alter the Constitution 
of the United States." f True, if they made it; but they 
did not make it, and therefore they have the right neither 

* Vol. i., Book iii., chap. iii. f Vol. i., Book iii., chap. iii. 
8 



106 IS DAVIS A TRAITOR? 

to alter nor to abolish it. The power that made, is the 
power to unmake. Mr. Justice Story did not mean, that 
is, he did not deliberately mean, that the people of the 
United States, or the majority of them, could alter or 
abolish the Constitution: for he was too well informed to 
be capable of such a blunder. But in this instance, as in 
many others, his logic, speaking the language of nature 
and of truth, got the better of his artificial and false 
hypothesis. 

If the people of the United States are, in reality, one 
sovereign political community, and as such, ordained the 
Constitution, then they have the most absolute control 
over all the parts; and the States bear the same relation 
to this one grand and overshadowing sovereignty, that 
counties sustain to a State. They may be divided, or 
moulded, or abolished, at the pleasure of the whole people. 
But everybody knows better than this. Mr. Lincoln did, 
it is true, endorse this conclusion, in the first speech he 
ever made to the American public. When the long silence 
was broken, and, as President elect, he addressed his first 
word to an anxious country, he likened the relation 
between the States and the Union to that of counties to a 
State. Until then, there were many intelligent and well- 
informed persons, who did not believe that there was one 
indivirliial in the United States capable of taking such a 
view of the Constitution, except among political preachers 
or parsons.* But however absurd, it is only the necessary 
consequence of the premises laid down by Mr. Justice 
Story and Mr. Webster. It will, however, be regarded by 
every student of the Constitution in the light of a reductio 
ad ab^urdum, which, instead of establishing the conclusion 
to which it leads, only shatters and demolishes the position 
from which it flows. 

* Indeed, this doctrine, and the very illustration of it, was 
borrowed by Mr. Lincoln from tlic celebrated Prcaclier of Prince- 
ton, N. J. Compare Mr. Lincoln's speech with Dr. Hodge on 
*' the State of the Country." 



CHAPTEE XV. 

The hypothesis that the people of America form one 'Nation. 

We have seen, in the preceding chapter, some of the 
absurdities flowing from the assumption, that the people 
of America form one nation, or constitute one political 

community. But as this is the , the first and 

all-comprehending falsehood, of the Northern theory of 
the Constitution, by which its history has been so sadly 
blurred, if not obliterated, and by which its most solemn 
provisions have been repealed, so we shall go beyond the 
foregoing reductio ad dbsurdum, and show that it has no 
foundation whatever in the facts of history. I was about 
to say, that it has not the shadow of such a foundation; 
but, in reality, it has precisely such a shadow in the vague 
]:)opular use of language, to which the passions of inter- 
ested partisans have given the appearance of substance. 
And it is out of this substance, thus created from a shadow, 
that have been manufactured those tremendous rights of 
national power, by which the clearly-reserved rights of the 
States have been crushed, and the most unjust war of the 
modern world justified. I purpose, therefore, to pursue 

this , — this monstrous abortion of night and 

darkness, into the secret recesses of its history, and leave 
neither its substance nor its shadow in existence. For- 
tunately, in the prosecution of this design, it is only neces- 
sary to cross-examine those willing witnesses by whom 
this fiction has been created, and compare their testimony 
with itself, in order to show that they are utterly unwor- 

[107] 



108 IS DAVJS A TRAITOR? 

thy of credit as historians of the iVmerican Union. I shall 
begin with Mr. Justice Story. 

The attempt of Mr. Justice Story to show, that the 
people of America formed one nation or State. 

This celebrated commentator strains all the powers of 
language, and avails himself of every possible appearance, 
to make the colonies of America " one people," even 
before they severed their dependence on the British 
crown. Thus, he says : " The colonies were fellow-sub- 
jects, and for many purposes one people. Every colo- 
nist had a right to inhabit, if he pleased, in any other 
colony; and as a British subject, he was capable of inher- 
iting lands by descent in every other colony. The com- 
mercial intercourse of the colonies, too, was regulated by 
the laws of the British empire ; and could not be restrained, 
or obstructed, by colonial legislation. The remarks of 
Mr. Chief Justice Jay on this subject are equally just and 
striking: ^KW the people of this country were then 
subjects of the king of Great Britain, and owed allegiance 
to him; and all the civil authority then existing, or exer- 
cised here, flowed from the head of the British empire. 
They were, in a strict sense, /e//otr-subjects, and in a 
variety of respects, one people.' " * 

N'ow all this signifies just exactly nothing as to the 
purpose wliich the author has in view. For, no matter in 
what respects the colonies were " one people," if they 
were not one in the political sense of the words ; or if they 
had n6 political power as one people, then the germ of the 
national oneness did not exist among them. But this is 
conceded by Mr. Justice Story himself. " The colonies," 
says he, "were independent of each other in respect to 
their domestic concerns." f Each was independent of the 
legislation of another, and of all the others combined, if 
they had pleased to combine. 

* St<irv on the Constitution, vol. i., p. 164. f Ibid. 



IS DAVIS A TRAITOR? 109 

In many respects, indeed, tlie whole human race may be 
said to be one. They have a common origin, a common 
psychology, a common physiology, and they are all sub- 
jects of the same great Ruler of the world. But this 
does not make all men " one people " in the political 
sense of the words. In like manner, those things which 
the colonists had in common, and which are so care- 
fully enumerated by Mr. Justice Story, do not make 
them one political community; the only sense in which 
their oneness could have any logical connexion with 
his design. Nay, so palpably is this the case, that he 
fails to make the impression on his own mind, which 
he seems so desirous to make on that of his readers; 
and the hypothesis that the colonies were " one people," 
is utterly dispelled by his own explicit admission. For, says 
he, '^ Though the colonies had a common origin, and owed 
a common allegiance, and the inhabitants of each were 
British subjects, tlieij had no direct political connexion with 
each other. Each was independent of all the others; each, 
in a limited sense, was sovereign within its own territory. 
There was neither allegiance nor confederacy between 
them. The Assembly of one province could not make 
laws for another, nor confer privileges which were to be 
enjoyed or exercised in another, farther than they could 
be in any independent foreign state. As colonies, they 
were also excluded from all connexion with foreign states. 
They were known only as dependencies, and they followed 
the fate of the parent country, both in peace and war, 
without having assigned to them, in the intercourse of 
diplomacy of nations, any distinct or independent exist- 
ence. They did not possess the power of forming any 
league or treaty among themselves, which would acquire 
an obligatory force, without the assent of the parent State. 
And though their mutual wants and necessities often 
induced them to associate for common purposes of defence, 
these confederacies were of a casual and temporary nature, 



110 IS DAVIS A TRAITOR? 

and were allowed as an indulgence, rather than as a 
right. They made several efforts to procure the estab- 
lishment of some general superintending government over 
them all: but their own differences of opinion, as well as 
the jealousy of the crown, made these efforts abortive." '^ 

It is impossible for language to be more precise and 
explicit. Hence, in whatever other respects the colonies 
may have formed " one people," we are here authorized, 
by the undisputed and the indisputable facts of history, to 
consider them as separate and independent of each other, 
in the political sense of the terms. And this is all our 
argument needs. 

Mr. Justice Story, not satisfied with the oneness of the 
people of the colonies before their separation from Great 
Britain, which he has been at so much pains to establish, 
next endeavors to show, that they were certainly moulded 
into one nation by the Declaration of Independence. If 
they were " one people " before, it is difficult to conceive 
how they were made so by that Declaration. To that act, 
says he, " union was as vital, as freedom or independence."! 
But what sort of union? Did the people unite and 
become one nation, in the sense that it was a sovereign 
political community; so that the whole could make a Con- 
stitution and laws for the parts ? If not, then the assertion 
misses the mark aimed at, and must go for nothing. But 
no one pretends^ for a single moment, that they became one 
people in any such sense of the words. Mr. Justice Story 
himself admits, that such union was temporary, and de- 
signed to perish with the common danger which had called 
it into existence. " The union thus formed," says he, " grew 
out of the exigencies of the times; and from its nature 
and objects might be deemed temporary, extending only 
to the maintenance of the common liberties and independ- 
ence of the States, and to terminate with the return of 

* Story on the Constitution, vol. i., p. 163-164. 
t Vol. i., Book xi., chap. 1., p. 200. Note. 



IS DAVIS A TRAITOR? Ill 

peace with Great Britain, and the accomplishment of the 
ends of the revolutionary contest." * Thus it is conceded 
that they became " one people," not to ordain a Constitu- 
tion or to enact laws, but only to resist a common enemy, 
and to continue united only during the presence of the 
common danger. Hence, this union was, according to 
Judge Story's own admission, more imperfect and fragile 
than that which, from the operation of a similar cause, had 
sprung up among the States of Greece, the Swiss Cantons, 
the United Netherlands, or the members of the German 
Diet. Yet no one has ever considered any one of these 
unions as forming one nation, or people, as contradistin- 
guished from a federation of sovereign and independent 
States. Such attempts, indeed, to prove that the colonies, 
or the States of America were one nation, or political com- 
munity, are simply desperate. They are scarcely made, 
before they are overthrown by the hand that reared them. 
But let us admit, for the sake of argument, that the col- 
onies formed one people before their separation from Great 
Britain, and that they were again made one people by the 
Declaration of Independence. Then no one colony could 
lawfully act without the concurrence of the others; as the 
parts would not be independent of the whole. Accord- 
ingly, Mr. Justice Story declares, that " the colonies 
did not severally act for themselves, and proclaim their 
own independence."! But it is well known; that Virginia 
did so. " Virginia," says Judge Story, " on the 29th June, 
1776, (five days before the Declaration of Independence.) 
declared the government of the country as formally exer- 
cised under the crown of Great Britain, totally dissolved, 
and proceeded to form a new Constitution." I Nay, she 
had already formed a new Constitution, in pursuance of 
her resolution of the 15th of the preceding month, and she 
adopted it on the 29th of June, 1776. Yet Virginia has 

* Vol. L, Book ii., chap, ii., p. 209. 

fVol. i., Book ii., chap, i., p. 197. $ Ibid. 



112 IS DAVIS A traitor: 

never been regarded as tainted with treason, or rebellion, 
against the people of America, because she thus proclaimed 
her own separate independence, and established her own 
Constitution. On the contrary, she has ever been honored 
by her sister colonies and States, for this bold and inde- 
pendent act. 

This is not the only insuperable difficulty in the way of 
the hypothesis, that the colonies were made one people 
by the Declaration of Independence. For, if this hypo- 
thesis be adopted, we must believe that this one people 
were afterwards broken up into separate and independ- 
ent States by an act of Confederation! In the case of 
Gibbons and Ogden,* the Supreme Court of the United 
States, say, (and the words are quoted with approbation 
by Mr. Justice Story,) f "As preliminary to the very able 
discussion of the Constitution which we have heard from 
the bar, and as having some influence on its construction, 
reference has been made to the situation of these States. 
anterior to its formation. It has been said, that they .were 
sovereign, were completely independent, and luere connected 
with each other only by a league. This is true."J Now, if 
this be true, as the Supreme Court of the United States 
affirm, and as Mr. Justice Story admits, how were this one 
people broken up into so many separate, '' sovereign,'' and 
'' completely independent " States ? This must have been 
done by the Articles of Confederation : since it is only in 
the presence of these Articles, that this fine theory about 
the oneness of the American people disappears, and the 
States once more shine out as free and independent sov- 
ereignties. No other cause can be assi.sfned for the change. 

It is perfectly certain, indeed, that if the people of 
America were one nation, or political community, prior to 
the adoption of those Articles, they tlien became divided 
into separate, distinct, and independent States. For, 

*6. Wheaton, p. 187.' f Vol. i., p. 323. 

% Vol. i., Book ii., chap, iii., p. 323. 



IS DAVIS A TRAITOR? 113 

acjording to those Articles, '" Eacli State retains its sover- 
eignty^ freedom, and independence/' Each State retains ! 
This language inqolies, indeed, that each State was free, 
sovereign and independent before those Articles jVere 
adopted. But then this is only one of the difficulties in 
the way of the theory of Judge Story. 

If they were not free and sovereign States before, if, on 
the contrary, they were one people, or nation, or political 
community, then it were absurd to speak of their union 
as an act of confederation. For it would, indeed, have 
been an act of separation, and not of confederation. It 
would have been the dividing of one nation into separate 
and sovereign States, and not the uniting of such States 
into one Confederacy. This is another of the difficulties, 
which stand in the way of the theory of Judge Story, and 
of the Xorthern school of politicians. 

Again, if one people were thus divided into free, sover- 
eign and independent States, by the Articles of Confedera- 
tion; then it is very inaccurate in Judge Story, to say, as 
he always does, that the States granted the powers by 
which the Confederacy was formed. He should, on the 
contrary, have spoken only of powers resumed by the 
States, or restored to them by the American people. 

But we may now take leave of his theory and all its 
insuperable difficulties. It is sufficient for my purpose, 
that after the Articles of Confederation were agreed upon, 
as the supreme law, the States were then free, sovereign 
and independent. It is asserted by the Supreme Court of 
the United States, as well as by Judge Story himself, that 
anterior to the adoption of the Constitution the States 
'' were sovereign, were completely independent, and were 
connected only hy a league/' It was in this capacity, it was 
as free, sovereign and completely independent States, that 
they laid aside the old, and entered into the new, "Arti- 
cles of Union," as the Constitution is everywhere called 
in the proceedins^s of the Convention of 1787. This is 



114 IS DAVIS A TRAITOR? 

conceded, Hence^ the situation of the colonies before their 
separation from the mother country^ or of the States 
before the adoption of the Articles of Confederation, has 
nothing to do with our present inquiry; which relates to 
the character in which the people, or the peoples of 
America, ordained the Constitution of the United States. 
If any one has a mind to amuse himself by building up or 
pulling down speculations or hypothesis on this subject, 
he may do so to his heart's content. It is sufficient for 
every practical purpose, that when they came to adopt 
the new form of government, each State was a completely 
free, sovereign, and independent political community, and 
in that capacity acceded to the compact of the Constitu- 
tion, 

The attempt of Mr. Curtis to show that the people of 
America formed one nation, or political community. 

Istv. Curtis, in his extended and elaborate History of the- 
Constitution of the United States, seems to vie with the 
introductory sketch of Judge Story, in the establishment 
of the foregone conclusion, that it was created by and 
rests on, " the political union of the people of the United 
States, as distinguished from the States of which they are 
the citzens." * For this purpose, it is necessary to show, 
in the first place, that such a political union of the whole 
people of the country had an existence. Accordingly, the 
facts of history are recast and moulded in order to suit 
this hypothesis. If possible, the conflict between fact and 
theory is, in his work, even more glaring than it is in that 
of Mr. Justice Story. 

" The people of the different colonies " were, says he, 
" in several important senses, one people/' f 

This is true. But it is not even pretended, by Mr. Cur- 
tis, that this was a political union; he only says, that it 
enabled them to effect such a union. He admits, on the 

* Vol. i., p. 122. t Vol. i., p. 9. 



IS DAVIS A TRAITOR? 115 

contrary, in the most explicit terms, "that the colonies 
had no direct political connexion with each other before 
the Eevolntion commenced, but that each was a distinct 
community, with its own separate political organization, 
and without any power of legislation for any but its own 
inhabitants; that, as political communities, and upon the 
principles of their organizations, they possessed no power 
of forming any union among themselves, for any purposes 
whatever, without the sanction of the Crown or Parlia- 
ment of England." * 

'• It is apparent,'' says he, " that previously to the Decla- 
ration of Independence, the people of the several colonies 
had established a national government of a revolutionary 
character, which undertook to act, and did act, in the 
name and with the general consent of the inhabitants of 
the country." f Thus, even previous to the Declaration 
of Independence^ the people of the colonies formed one 
nation, and established " a national government." A 
nation, with a national government, and yet dependent 
colonies ! 

" This government," says he, " was established by the 
Union in one body of delegates representing the people 
of each colony." That is, each colony, acknowledged to be 
perfectly and wholly independent of every other, sends 
delegates to one body ; and this body, whose duty it is to 
advise and recommend measures to the several colonies, is 
"a national government!" Surely, if such an advisory 
council may be called a government at all, it is anything 
rather than national in its character. It is, in fact, merely 
the shadow of a federal government. 

Mr. Curtis himself is evidently not satisfied with the 
" one nation," in this stage of its development, or purely 
verbal existence. Hence^ he insists, with Mr. Justice 
Story, that the colonies were really made one nation by 
the Declaration of Independence. "The body by which 
* Vol. i., p. 9. t Vol. i., p. 39. 



116 IS DAVIS A TUAITOH.'' 

this step was taken/' says he, " constituted the actual gov- 
ernment of the nation, at the time;" * that is, while they 
were yet dependent colonies ! " It severed the political 
connexion between the people of this country and the peo- 
ple of England, and at once erected the different colonies 
into free and independent States." f Thus, the colonies 
formed "one nation" before their separation from Great 
Britain, and afterwards became "free and independent 
States." Or, in other words, the nation preceded the 
States; an opinion for which Mr. Lincoln has been most 
unconsciously laughed at. This opinion is still more 
explicitly advanced by Mr. Curtis, in another portion of 
his history. "The fact," sa3^s he, "that these local or 
State governments were not formed until a Union of the 
people of the different colonies for national purposes had 
already taTcen place, and until the national power had 
authorized and recommended their establishment, is of 
great importance in the Constitutional history of our 
country; for it shows that no colony, acting separately 
for itself, dissolved its own allegiance to the British crown, 
but that this allegiance was dissolved by the supreme 
authority of the people of all the colonies," &c., &c.J; 
This fact, which is deemed of so much importance in the 
constitutional history of this country, happens, as we 
have seen, to be a fiction ; and a fiction, too, in direct con- 
flict with the well-known fact, that Virginia declared her 
own separate independence. 

But if. bv the Declaration of Independence, the colonies 
became " free aufl independent States," how could that act 
have moulded them into one sovereign political commu- 
nity, or nation? This is one of the mysteries, which T 
am glad it is not incumbent on me to solve. Was the 
Declaration of Tnrlopondence itself necessarilv, or ox vi 
term 1711, a declaration of independence, and. at the same 
time, one of subjection to a higher authority? I^ we 

*Vol. i.. p. .f)!. tn)irl. tVol. i.. pp. 30. 40. 



IS DAVIS A TRAITOR? 117 

may adopt Mr. Curtis as a guide, we must answer this 
question in the affirmative. For, says he, although the 
colonies were thereby " erected into free and independent 
States/' "the people of the country became henceforth 
the rightful sovereign of the country; they became united 
in a national corporate capacity, as one people; they 
could thereafter enter into treaties and contract alliances 
with foreign nations, could levy war and conclude peace. 
a7id do all other acts pertaining to the exercise of a national 
sovereignty/' * If so, then of course they could ordain 
Constitutions and enact laws; they could set up, or pull 
down, or modify the parts, called States, as if they were 
counties, or mere districts of people. For such is the 
power of one sovereign State, or nation, over its various 
members. 

But, unfortunately, for this bold assertion, Mr. Curtis 
himself tells us, on the very next page of his work, that 
" on the same day on which the committee for preparing 
the Declaration of Independence was appointed, another 
committee, consisting of a member from each colony, was 
directed to prepare and digest the form of a confederation 
to he entered into between these colonies," that is, after they 
should become free and independent States. " This com- 
mittee, he continues, " reported a draft of Articles of Con- 
federation on the 12th of July. &c." These Articles were 
discussed, postponed, resumed, amended, and, finally, 
adopted. 

Xow whence resulted the powers conferred by these 
Articles of Confederation? Were they not granted by 
the " free and independent States ?" Most assuredly they 
were; no one has ever had the hardihood to deny so plain 
a fact, except by implication. But if all the powers of 
the new "national government," as it is called by Mr. 
Curtis, were granted by " free and independent States," 
each acting for itself, as every one acknowledges it to 

*Vol. i, p. .52. 



118 IS DAVIS A TRAITOR? 

have done; then for wliat conceivable purpose has he con- 
jured up the phantom of a pre-existing national sover- 
eignty of the whole people of the country? 

It is certain that this phantom has been completely 
laid by Mr. Curtis himself. The whole elaborate illusion, 
which it has cost him so much pains to get up, is thus 
dispelled by a plain, simple and unpremediated state- 
ment of unquestionable facts, by the author himself. 
*' The parties to this instrument," says he, referring to the 
Articles of Confederation, " were free, sovereign and inde- 
'pendent political communities, — each possessing within it- 
self all the powers of legislation and government over its 
own citizens, wliich any political society can possess. But, 
by this instrument, these several States became united for 
certain purposes." * Surely, all this must have been absent 
from the mind of Mr. Curtis, when he spoke of the peo- 
ple of the several States as having been previously 
merged into one absolutely sovereign political community. 
But it seems to be requiring too much to expect a Massa- 
chusetts politician to remember any thing he may have 
said on any preceding page of his work. 

Nor is this all. For it is also conceded that the States, 
which were " free, sovereign and independent political 
communities " before they adopted the Articles of Confed- 
eration, retained the same prerogatives, or attributes, 
after that event. " The Article," says he, " declared, — as 
would indeed he implied, in such circumstances, without 
any express declaration, — that each State retained its sov- 
ereignty, freedom, and independence." f I^ ^^s, then, in 
this condition of " free, sovereign, and independent politi- 
cal communities," that the States passed from the old to the 
new Articles of union, or severally agreed to the compact 
of the Constitution. Why, then, conjure up shadows and 
phantoms of a national unity only to dispel them? The 
'Cause of secession only demands the fact, that the States, 

* Vol. i. p. 143. t Ibid. 



IS DAVIS A TRAITOR? 119 

as "free, sovereign, and independent political communi- 
ties/' formed and entered into the new "Articles of 
Union;'' and this fact is conceded both by Story and 
Curtis. 

The use of the term People. 

Much of the inconsistency and contradiction in the 
views above examined, is due to the ambiguities of the 
word people, and the utter confusion of its loose, floating 
significations, with its technical or scientific sense. We 
sometimes pronounce a people one^ because they have a 
■common origin, or a common language, or a common 
religion, or even because they inhabit the same portion 
of the globe. Thus, we speak of " the people of Europe," 
or " the people of America," without intending to convey 
the idea that they are a people in the political sense of the 
term. When we say, however, that " the people are sov- 
ereign," we use the word in a more restricted sense. We 
then speak of the people in the political or technical 
sense of the term. 

This includes only the qualified voters of the commu- 
nity, or those by whom Constitutions may be ordained, 
and re-modelled. For no other persons participate in the 
exercise of the sovereign power. Women and minors are 
excluded, as well as some other classes, even in our Amer- 
ican States. It is in this limited sense of the word, that 
the people are said to make compacts, or Constitutions and 
laws, either by themselves or by their agents. 

If Mr. Justice Story had borne this in mind, he might 
have saved himself from all his criticisms on the doctrine 
of a social contract based on the ground that " infants, 
minors, married women, persons insane, and many others,"* 
take no part in the formation of civil societies, or in the 
creation of constitutions and governments. No one 
includes such persons in the idea of a people, when these 

*Vol. i., Book iii., chap, iii., p. 296. 



120 IS DAVIS A TRAITOR? 

are said to be sovereign. Hence, his " limitations and 
qualifications " of the doctrine in question, have exclusively 
arisen from his own misapprehension. Something more 
than a mere natural person is necessary to constitute one 
of " the people," one of the multitudinous sovereignty of 
an American State. " The idea of a people," says Burke, 
evidently using the term in its restricted or political sense, 
" is the idea of a corporation ; it is wholly artificial, and 
made, like all other legal fictions, by common agreement." * 
That is, says he, " in a rude state of nature, there is no 
such thing as one people. A numher of men in iliemselves, 
can have no collective capacity/' Or, in other words, seme- 
thing more than a number of men is necessary to make a 
people, or State. It must be agreed and settled, as to 
who shall take part in the exercise of political power, ere 
constitutions and laws may be ordained or remodelled by 
them. 

But in vain did Burke, and Hobbes, and other writers 
on the philosophy of politics, endeavor to " fix, with some 
degree of distinctness, an idea of what we mean when we 
say, the People."! Their labors seem to have been lost 
upon the politicians of the Massachusetts school ; and, in 
some instances, at least, they appear to have only cast 
their pearls before swine. For one of the great lights of 
that school kindles into a blaze of fiery indignation against 
Mr. Burke, for simply advancing the incontestable truth, 
that what we call a People is, in the political sense of the 
word, the result of an agreement or mutual understanding 
of a community of persons. " 0, that mine enemy had 
said it !" the' admirers of Mr. Burke may well exclaim," 
cries this great light of Massachusetts. " 0, that some 
scofTing Voltaire, some impious Rousseau had uttered it! 
Had uttered it? PoUvSseau did utter the same thing, (fee." J 
This is true. For widely as Edmund Burke and Rousseau 

* Appeal from th« New to the Old Whigs. t Ibid, 

t Everett's Orations and Speeches, vol, i., p. 122. 



IS DAVIS A TRAITOR? 121 

differed on most points^ they agreed in this^ that it is not 
nature^ but art^ which determines the question, as to who 
shall participate in the exercise of political power, or con- 
stitute a People, in the political sense of the word. Even 
" the impious Rousseau '^ is sometimes right, and nearly, if 
not quite, always so when he agrees with Edmund Burke. 

In his attempt to show that the Constitution was 
adopted by the people, and not b}^ the States, Mr. Justice 
Story deceives himself by means of the ambiguities of the 
term people, and repeatedly contradicts his own positions. 
" The States never, in fact," says he, " did, in their politi- 
cal capacity, as contradistinguished from the people 
thereof, ratify the Constitution."* This is very true, if 
by States in their political capacity, he means, as he seems 
to do, the State governments. But this is not to the pur- 
pose. Every one admits, that the Constitution was ratified, 
not by the Governments, but by the people of the States. 
Nor does any one deny, that the term State is sometimes 
used to signify the government of a State. Thus we, 
often say, that the State does so and so, when the thing is 
done by its Government. But the question is, may we not 
say, that the Constitution was ratified by the States, as 
well as by the people of the States? Or, in other words, 
are not the terms State and People properly used as equiv- 
alent expressions? These words were, as we have already 
most abundantly seen, habitually used as convertible terms 
by the Convention of 1787. 

We may truly say, indeed, with Judge Story, that the 
Constitution was not ratified by the States, as contradis- 
tinguished from the people; because it is not very easy to 
distinguish a thing from itself. In assuming this position, 
Mr. Justice Story forgets what he had said in the preced- 
ing Book of his Commentaries, namely, " the State and 
the people of the State, are equivalent expressions." f 
" Nay, the State," he again says, " by which we mean the 

*Vol. i., page 330. t Vol. i., Book ii., p. 198. 9 



122 IS DAVIS A TRAITOR? 

people composing the State, may divide its sovereign 
powers among various functionaries, &c." * Here the term 
"people is clearly used to include only the qualified voters, 
or those who share the sovereign power; and, in this 
sense, they are called " the State." It is precisely in this 
sense, that the Constitution was ratified by the people, 
or the States. We may, and indeed should, distinguish 
between the meanings of the term State, when it is figura- 
tively used to signify the government of a State, and 
when it is used to signify the State itself. But we shall 
never distinguish the people of a State from the State 
itself, until we can find a State which is not composed of 
people. 

But the attempt is made to show, that, in adopting the 
Constitution, the States acted as mere districts of people, 
and not in their sovereign political capacity, f But if this 
were so, then the different districts would have been con- 
sidered together in making up the final result, and the 
majority of the one grand, national whole would have 
ordained the Constitution. The fact, however, the un- 
denied and the undeniable fact, is quite otherwise. Each 
State, with all its own laws, and institutions and govern- 
ment, either went in, or remained out, at its own sovereign 
will and pleasure. In the words of the Federalist, it was 
'' only to be bound by its own voluntary act." No other 
State, nor all other States combined, nor the whole people 
of America, had the least authority to control its decision. 
This was an absolutely free, sovereign and independent 
act of each State. It may be doubted, indeed, if there was 
ever a more superficial gloss, or a more pitiful subterfuge, 
than the assertion of Judge Story, that the States adopted 
the Constitution, not as States, but only " as districts of 
people " composing one great State or nation. It is at 
war with facts ; it is at war with his own repeated admis- 
sions; and it is at war with the plainest dictates of truth, 

* Ibid, p. 104. t Story's Com. on the Constitution, vol. 1, p. 330. 



IS DAVIS A TRAITOR? 123 

as well as with the unanswerable arguments of the Fed- 
eralist. Sad, indeed, must have been the condition to 
which the great sophist was reduced, when he could stoop 
to so palpable a gloss on one of the plainest facts in the 
history of the Constitution ! 

CON^CLUSION. 

Mr. Justice Story has, I am aware, as well as Mr. Web- 
ster, laid great stress on the fact, that the Constitution 
addresses the language of authority to the States. " The 
language of a compact is," says he, " I will, or will not do 
this ; that of a law is, thou shalt, or shalt not do it." * 
This is what the act of entering into a compact signifies, 
but it is not usually the language of the instrument itself. 
On the contrary, the Articles of Confederation, which are 
universally admitted to form a compact, use precisely the 
same style as the Constitution. Both say what shall, and 
what sJiall not, be done by the States. Precisely the same 
style is also employed in the formation of compacts or 
treaties between wholly separate and independent powers. 
Nay, in the most ordinary articles of co-partnership, it is 
usual to say, in the same manner, what sliall, and what 
shall not, be done by the parties thereto. Yet all such 
instruments rest upon the agreement of the parties, and 
derive their binding force from their voluntary act. 

There is a very simple law of language, which seems to 
have escaped the attention of these great expounders of 
the Constitution. The language of written contracts 
usually speaks of th^ parties in the third person, and not for 
them in the first person. Hence, they necessarily assume 
the imperative style ; laying down what shall, and not say- 
ing what ivill, be done by them. It would have been 
ridiculous, indeed, if the Constitution had said, No State 
will emit bills of credit, or coin money, and so forth, instead 
of saying, as it does, that no State shall do such acts. 

* Vol. i., p. 308. 



124 ]S DAVIS A TKAITOR? 

Like other written contracts^ it says shall, of course, be- 
cause it speaks of the parties in the third person, and 
lays down the obligations imposed upon them by their 
own consent. This is a very simple law of language. 
But that is no reason wliy it should be overlooked by the 
great lights of jurisprudence. 

" In compacts/' says Judge Story, " we ourselves deter- 
mine and promise, what shall be done, before we are 
obliged to do it." No words could more admirably suit 
our purpose, or the facts of the case. For each State 
agreed to the compact of tlie Constitution, which pre- 
scribes "what shall be done," before it was bound by it. 
That " no State shall emit bills of credit," and so forth, is 
precisely the style which, according to Judge Story him- 
self, as well as according to all usage, would be employed 
in articles of agreement between the States; and hence, to 
argue for the use of shall, instead of will, that the Consti- 
tution addresses the language of authority from the people 
of America to the States, is simply ridiculous. " In com- 
pacts," says Story, "we ourselves determine and promise 
what shall be done, before we are obliged to do it." And 
yet, in the face of this obvious fact, he argues from the use 
of shall in the Constitution, that it is not what the State 
"determined and promised," but what they were com- 
manded to do ! that it is not, and cannot be a compact 
between the States at all ! 

A and B enter into articles of agreement. These arti- 
cles, according to good usage, say what A shall do, 
and what B shall do. What shall we sav. then, of these 
articles? Shall we say, that they do not form an agree- 
ment, or contract at all? Shall we say, that A commands 
B, or '' addresses to him the language of authority," as a 
law-giver speaks to a subject? If so, then B. also com- 
mands A, and each is evidently the master of the other! 
Precisely such is the profound logic of Mr. Justice Story! 



CHAPTER XVI. 

Argumejits in favor of the Right of Recession. 

In the preceding chapters, it has, I think, been clearly 
demonstrated, that the Constitution of the United States 
was a compact to which the several States were the par- 
ties. This, as we have seen, was most explicitly the doc- 
trine maintained by the fathers of the Constitution, and 
was unequivocally set forth by the Federalist in submit- 
ting that instrument to the people, and that it is confirmed 
by all the historical records of the country. If any propo- 
sition, indeed, respecting the Constitution can be consid- 
ered as unanswerably established, it is the doctrine of the 
Federalist, that the act by which it was ordained was " not 
a national, but a federal act ;" having been ratified " by 
the people of America, not as individuals composing one 
nation, hnt as composinrj the distinct and independent 
States to which they belong ;" * that the Constitution, " the 
compact," was established by " the States regarded as dis- 
tinct and independent sovereigns." f It is, then, on this 
clear, broad, immutable foundation, that the argument in 
favor of secession rests. 

Argument in favor of Secession from the doctrine of re- 
served rights. 

It is frequently asked, by the opponents of secession, 
where is the right of a State to withdraw from the Union 
set forth or contained in the Constitution? But this 
question betrays a gross ignorance with respect to the 

* Federalist, K"o. xxxix. t Ibid, No. xl. 

[125] 



126 IS DAVIS A TRAITOR? 

origin of State rights. These rights are not derived from 
the Constitution at all; on the contrary, all the rights, 
powers, or authorities of the Constitution are derived 
from the States. And all the rights not delegated to the 
Federal Government by the States, are reserved to the 
States themselves, — the original fountains of all the pow- 
ers of " the Constitution of the United States." This is 
the doctrine set forth by the '' Federalist " in submitting 
that instrument or Constitution to the people. 

" The principles established in a former paper," says the 
Federalist, " teach us, that the States will retain all pre- 
existing authorities which may not be exclusively dele- 
gated to the federal head." * In the former paper here 
referred to, it is said: "All authorities, of which the 
States are not explicitly divested in favor of the Union, 
remain ivith thetn in full vigor." \ In the ratifying Con- 
vention of Virginia, the same doctrine is set forth as well 
known to every one at that day, by John Marshall, who 
was afterward the illustrious Chief Justice of the Supreme 
Court of the United States. " The state governments,'' 
says he, " did not derive their powers from the general 
government. But each government derived its powers 
from the people, and each was to act according to the 
powers given it. Would any gentleman deny this? He 
demanded if powers not given, were retained by implica- 
tion ? Could any man say, no ? Could any man say, that 
this power was not retained by the vStates. since it was not 
given away? For, says he, does not a power remain 
till it is given away?" f 

Neither Marshall nor Hamilton, the author of the num- 
bers of the Federalist just quoted, was ever suspected of a 
desire to lessen the authority of the Federal Union, or to 
magnify that of the States. Yet, as we have seen, both 
of them assume as an undeniable principle, that every 

* Federalist, No. Ixxxii. t Federalist, No. xxxii. 

t Ellioi's Debates, Vol. iii,. p.3Sn. 



IS DAVIS A TRAITOR? 127 

power which is not delegated by the States to the Federal 
Union, is retained by them in full vigor. This principle 
results, indeed, from the fact that all the powers of the 
Federal Government emanate from the people of the sev- 
eral States. The question of Marshall " does not a power 
remain till it was given away?" admits of but one answer. 
For if a principal delegates power to an agent of any 
kind, or for any purpose; the agent only possesses the 
delegated powers, and all others remain with the princi- 
pal. Thus, according to the very nature of things, as 
well as according to the high authority of Hamilton and 
Marshall; the States retained all the powers which they 
had not delegated to the Federal Union. 

But however plain this principle, or however fully ad- 
mitted by the advocates of federal authority; the States 
still insisted that it should be expressly incorporated in 
the written language of the Constitution. Hence Massa- 
chusetts, having ratified the Constitution, used the follow- 
ing language: "As it is the opinion of this Convention, 
that certain amendments and alterations in said Constitu- 
tion would remove the fears and quiet the apprehensions 
of many of the good people of the commonwealth, and 
more effectually guard against an undue administration 
of the Federal Government, the Convention do therefore 
recommend that the following alterations and provisions 
be introduced into said Constitution: 

" First, That it be explicitly declared that all powers 
not expressly delegated by the aforesaid Constitution, are 
reserved to the several States, to be by them exercised." * 

In like manner, and for a like reason, Virginia recom- 
mended the following "Amendment to the Constitution. 
1st. That each State in the Union shall respectively 
retain every power, jurisdiction, and right, which is not 
by this Constitution delegated to the Congress of the 
United States, or to the departments of the Federal Gov- 

* Elliot's Debates, vol. ii., p. 180. 



128 IS DAVJS A TRAITOUy 

ernment." * Xorth Carolina urged the same amendment 
to the Constitution, and in precisely the same words as 
those employed by Virginia, f In the first amendment 
proposed by Pennsylvania, we find the following words: 
"All the rights of sovereignty, which are not by the said 
Constitution expressly and plainly vested in the Congress, 
shall he deemed to remain ivith, and sliall he exercised by 
the several States in the Union." X 

These recommendations, and others to the same effect, 
secured the tenth amendment to the Constitution of the 
United States; which is in these words: "The powers 
not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States, 
or to the people/' If reason, if authoritv, if history, if the 
words of the Constitution itself, can establish any thing; 
then may we regard it as definitely and forever settled, 
that every power, right, or authority which is not delega- 
ted to the Federal Union, is reserved to the States, or to 
the people of the States. 

I ask, then, where is this great, inherent right of a 
State to resume the powers it has delegated, surrendered 
to the Federal Union? Where has this peerless right of 
sovereignty been ceded, surrendered, or given away? 
The people may rage, and the politicians imagine a vain 
thing; but I appeal to the great charter of American 
rights and liberties. Wliere, then, in the Constitution of 
the United States, is the sacred and inviolable right of a 
sovereign State to resume the powers it has delegated to 
its agents, given away or surrendered? When the States 
entered into "the compact of the Constitution," they did 
so, as it is conceded both by Story and Curtis, at the 
moment they were "free, sovereign, and independent 
States." Where, then, in that compact, did they delegate, 
surrender, or give away, the sacred right to resume the 

* Ibid, vol. iii.. p. 594. t Tl^i'1. vol. Iv., p. 240. tibid, vol. ii., 
p. 503. 



IS DAVIS A TRAITOR.'* 129 

powers which they delegated to their agent, the Federal 
Government; or, in other words, the right to secede from 
the Union ? Let the place in which this right, this great- 
est of all the rights of sovereignt}^, has been given away 
to the Federal Union, be pointed out in the Constitution; 
or it must be conceded, that it remained with the States. 
Let it be shown, where " the States are explicitly divested " 
of this right " in favor of the Union f or it must be 
admitted, that it " remained with them in full vigor." * 
Ignorance, or passion, or patriotism may " veil this right;" 
but, nevertheless, the question is, where is this right given 
away in the compact of the Constitution? If it be not 
given away there; it still exists with the States in all the 
plenitude of its power. The stars do not cease to shine, 
or to exist, because they are concealed from view by ex- 
halations from the earth, or by the blaze of noon. 

Argument from the Sovereignty of the States. 

Perhaps no subject has ever been considered with less 
steadiness of mind, or clearness of analysis, than "the 
sovereignty of the States," except "the sovereignty of 
the United States." The powers of the Federal Govern- 
ment are enumerated by one party, in order to show that 
it is sovereign or supreme ; while the opposite party 
attempts to prove the sovereignty of the States, by dwell- 
ing on the powers which belong to their governments. 
But all this is nothing whatever to the purpose. It 
merely deals wdth the branches, not with the roots, of the 
great subject under discussion ; and how long soever these 
branches may be beaten, it will only make confusion the 
worse confounded. In the contest about the significance 
of the particular powers of the Federal and of the State 
Governments, the real principle on which the whole con- 
troversy hinges is overlooked, and the subject in dispute 

* Federalist, No. xxxii. 



130 IS DAVIS A TRAITOR? 

is darkened by words without knowledge^ and buried far 
under floods of logomacy. 

Mr. Webster, for example, thus demolishes the doctrine 
of State sovereignty : " However men may think this 
ought to be, the fact is, that the people of the United 
States have chosen to impose control on State sovereign- 
ties. There are those, doubtless, who wish they had been 
left without restraint; but the Constitution has ordered 
the matter differently. To make war, for instance, is an 
exercise of sovereignt}^, but the Constitution declares that 
no State shall declare war. To coin money is another act 
of sovereign power; but no State is at liberty to coin 
money. Again, the Constitution says that no sovereign 
State shall be so sovereign as to make a treaty. These 
prohibitions, it must be confessed, are a control on the 
State sovereignty of South Carolina, as well as of the 
other States, which does not arise ^ from her feelings of 
honorable justice.' The opinion referred to, therefore, is 
in defiance of the plainest provisions of the Constitu- 
tion." * ^Hiy, then, did he not wind up his unanswerable 
logic with a quod erat demonstrandum? 

The truth is, that the whole thing, from beginning to 
end, is a miserable sophism. His premises are false, and 
his conclusion, therefore, falls to the ground. The fact 
is, that the people of the United States imposed no con- 
trol whatever on the States, and had no power to do so. 
On the contrary, each State, for the sake of union, agreed 
that it would abstain from the exercise of the right to 
wage war, to coin money, and to make treaties. She del- 
egated these high powers to the government of the Fed- 
eral Union. She entered into the compact of the Consti- 
tution, as we have seen, in her character of " a distinct 
and independent sovereign," and was, therefore, " bound 
only by her own voluntary act." f ^^1^ f^ie powers of the 
Constitution were delegated, and all its obligations assumed 

•Webster's Works, vol. iii., p. 322. "^Federalist. 



IS DAVIS A TRAITOR? 131 

by the free act of each sovereign State. All the con- 
trol to which she was liable in the Union was self-imposed; 
and not one particle of it was laid upon her by any author- 
ity but her own. The act^ indeed, by which she entered 
into the compact of the Constitution, was an exer- 
cise, not an abridgement, of her sovereign power. If 
she could not enter into such a compact, she would be 
less than sovereign. 

It is supposed by some, certainly by none who have 
reflected on the subject, that if a State delegates a portion 
of her powers, or agrees to abstain from the exercise of 
them; her sovereignty is thereby limited, or abridged. 
To all such I would commend the words of Yattel : " Sev- 
eral sovereign and independent States," says he, "may 
unite themselves together by a perpetual confederacy, 
without ceasing to be, each individually, a perfect State. 
They will together constitute a federal republic : their 
joint deliberations tvill not im,pair the sovereignty of each 
member, though they may, in certain respects, put some re- 
straint on the exercise of it, in virtue of voluntary engage- 
ments'' * Every one should be perfectly familiar with this 
principle of law. It has been clearly recognized and em- 
bodied in the legislation of this country. In the thirteenth 
Article of the old Confederation, for example, it is expressly 
declared that " the Union shall be perpetual;" and 
yet, in the second Article, it is said that " each State 
retains its sovereignty, freedom, and independence." Thus, 
although the States, in and by those Articles, delegated 
many sovereign powers to the Federal Government; this, 
in conformity with the principle laid down by Yattel, did 
" not impair the sovereignty of each member." But since 
the new Constitution, or Articles of Union, contained no 
clause declaring it perpetual, or assigning any period for 
its duration ; how much more clearly did each State in the 
" more perfect Union " retain its sovereignty unimpaired !' 

* Vattel's Law of Nations, p. 3. 



132 IS DAVIS A TRAITOR? 

For, in such case, it is conceded, as we have repeatedly 
seen, by the great lights of American jurisprudence, that 
a State may secede at pleasure, or resume the powers she 
may have delegated to the Federal Government. 

Indeed, if a State could not thus delegate her sovereign 
powers, she would cease to be sovereign. She would 
resemble a minor, who is incapable of entering into con- 
tracts. The State, or the people themselves, cannot exer- 
cise sovereign powers in person; and hence, if she could 
not delegate them to her agents, representatives, substi- 
tntos, or servants ; lior sovereignty would be a useless 
burden to her. Thus, the very circumstance which is 
supposed, by superficial thinkers, to limit and control the 
sovereignty of a State, is indispensably necessary to the 
perfection of that sovereignty. The people are not 
tlic less sovereign, because they institute governments, 
and apj^oint tliem as agents to transact their business; 
althougli tliey necessarily delegate a portion of their sov- 
ereign po\^'ers to these agents, or governments. On the 
contrary, this is the very highest exercise of sovereignty, 
and implies the right to alter, amend, or remodel their 
governments. Xay, it iiiij^lies the right of a people to set 
their government entirely aside, and to substitute another 
in its room. 

Wliat, then, has all this talk about the powers dele- 
gated to the State Governments, or to the Federal Gov- 
ernment, to do with the great question of sovereignty? 
Those governments are not sovereign. They are subordi- 
nate to the will of the people, by whom they were created; 
and a subordinate sovereignty is a contradiction in terms. 
The only real sovereignty is that which makes, and 
unmakes. Constitutions and Governments. Or, if any one 
is pleased to call any Government, whether State or Fed- 
eral, sovereign; he should not forget that it is merely a 
delegated sovereignty. It is not original ; it is derived. It 
is not inherent; it comes from without; and, instead of 



IS DAVIS A TRAITOR? 13:^ 

being supreme, it depends on a power greater than itself. 
It is divisible, and may be divided among different govern- 
ments, or agents of the supreme power. On the contrary, 
the sovereign power of a State, or, in other words, the 
power of the people of a State, is inherent, original, 
supreme, indivisible, and inalienable. This, at least, is the 
American doctrine; and it is to be deeply lamented that 
Americans should, in the ardor and struggle of debate, so 
frequently forget, or overlook, the very first lessons they 
have ever learned, and which they certainly do not mean 
to repudiate or discard. 

I have nothing to say, then, about the delegated powers 
of this or that government. They have nothing to do 
with the question. Others may wrangle about those 
powers, if they please, and beat their brains over them; 
all I want to know is, where resides the one power from 
which all such delegated poivers proceed. The difference 
between this one poiver and the powers of the government 
it creates, is the difference between the sun and its rays, 
or the creator and its manifold creations. Where, then, 
does this one sovereign power reside? It resides, as we 
have seen, in each State, and not in the people of the 
United States. The people of the United States, indeed, 
were not one people, or nation, in the political sense of the 
word, and were never clothed with any sovereign power 
whatever. The late war was, it is true, carried on "to 
preserve the life of the nation." But there was no such 
nation. Its substance was a sham, and its life was a lie.* 

As the one sovereign power, which makes, and therefore 
unmakes. Constitutions and Governments, resides in each 
State : so each State had the right to secede from the Fed- 
eral Government. As each State, however, only made or 
adopted that Government for itself: so she cOuld un- 
make it as to herself only. That is, she had no power to 
destroy the Federal Union, but only to withdraw from it, 

* See chap. xv. 



134 IS DAVIS A TRAITOR? 

and let it move on in its own sphere. In the exercise of 
her original, inherent, indivisible, and alienable sover- 
eignty, she merely seceded from the Union to which she 
had acceded, and asked to be let alone. But she could not 
escape the despotic, all-devouring Lie, by which her sov- 
ereignty had been denied, and her rights denounced as " a 
pestilential heresy." ^ay, by which she had been stripped 
of her character as a State, and degraded to the rank of a 
county. Was that the purpose for which, as a sovereign 
State, she entered into " the more perfect Union ?" 

" Xo man," says Mr. Webster, " makes a question that 

the people are the source of all political power 

There is no other doctrine of government here." * This 
is conceded. The people make, and the people unmake. 
Constitutions. This is the universally received doctrine 
in America. It is asserted by Calhoun as strenuously as 
by Webster. 

But the Constitution was made by the people of the 
several States, each acting for itself, and bound by no 
action ])ut its own. Hence, as each State acceded to the 
compact of the Constitution, so each State may, if it 
chose, secede from that compact. If the premise is true, 
the conclusion is conceded; and the 'premise lias been de- 
monstrated. In acceding to the compact of the Constitu- 
tion, each State made the Union as to itself; and, in seced- 
ing therefrom, it unmakes the Union only as to itself. And 
it does so by virtue of its own inherent, and inalienable 
sovereignty. 

If it should be said, that the people of the several States 
made, but cannot unmake, the compact of the Constitution, 
as to themselves; it would follow that the people of 1788 
alone were sovereign. But the people of this generation 
are sovereign as well as the people of that generation. The 
attribute of sovereignty is, according to the American 
doctrine, inherit and inalienable. The people of Virginia. 

* Webster's Works, vol. vi., p. 221. 



IS DAVIS A TRAITOR? 135 

then, in the year 1?88, did not, and could not, absorb and 
monopolize the sovereignty of all subsequent generations, 
so as to deprive them of its exercise. If this could be so, 
then the sovereign people of one age, or generation, might 
deprive the sovereign people of all ages and generations 
of their power and freedom. But this cannot be. The 
living, as well as the dead, are sovereign. As the people 
of Virginia in 1788 acceded to the Union, because they 
believed it would be for their good; so the people of Vir- 
ginia in 1861 had a right to secede from the Union, because 
they believed it had been made to work their insufferable 
harm. Deny this, and you assert the sovereignty of the 
people of Virginia of 1788, at the expense of the sover- 
eignty of the people of Virginia for all future ages. Or, in 
other words, you take all power and sovereignty, and 
freedom from all other ages and generations, in order to 
concentrate and bury them with a past, departed, inexpe- 
rienced, and perhaps fatally deluded generation. The 
whole American doctrine of the sovereignty of the people 
is false, or else it must be asserted for the living as well as 
for the dead; and even if it is false, it is nevertheless the 
doctrine by which the right of secession should be tried. 

At the time the Constitution was adopted, or " the more 
perfect Union " formed ; the people of N'ew England took 
the lead of all others in their devotion to State-sovereignty 
and State-rights. Thus, in her Constitution of 1780, Mas- 
sachusetts declared : " The people of this commonwealth 
have the sole and exclusive right of governing themselves, 
as a free, sovereign, and independent State; and do, and 
forever hereafter shall, exercise and enjoy every power, 
jurisdiction, and right, which is not, or may not hereafter, 
be by them expressly delegated to the United States of 
America, in Congress assembled." Precisely the same 
language, word for word, is contained in the Constitution 
of New Hampshire ; which was made twelve years after 
that of Massachusetts. Thus, after the new Union was 



130 IS DAVTS A TRAITOR? 

formed, New Hampshire, in the words of Massachusetts, 
declared herself a " free, sovereign, and independent 
State." " Paris," it has been said, " is France." It is more 
certain that " Massachusetts is New England." 

How did it happen, then, that Massachusetts in 1780, 
and consequently New England, took the lead of all 
the members of the Union in her devotion to the doctrine 
of State-sovereignty; and yet, in 1861, more fiercely 
denounced that very doctrine as " a pestilential heresy " 
than any other State in existence? The answer is plain. 
The mystery is easily solved. Or rather, it is no mystery 
at all to any one acquainted with the character, or the 
history, of Massachusetts. Never has she been in the 
ascendency, as in 1861, or with the majority working the 
Union for her benefit, that it did not appear to her eyes, 
like the full moon, a great world of light full of inexpressi- 
ble beneficence and beauty. Nor has she ever been in 
the minority, feeling the pressure of the Union, or its 
demands upon her purse, that it did not rapidly wane, and 
appear to her emptied of all its glory. Hence, in 1861, so 
great was the glory of the Union to her enravished eyes, 
that it blotted out the States; just as the meridian sun 
blots out the stars. She forgets her primitive creed; or, 
if she remembers it at all, it is only to denounce it as the 
creed of " rebels and traitors." On the other hand, when 
in 1815, Massachusetts felt the Union in her pockets; all 
its glory vanished, and the Rights of the States, and the 
Sovereignty of the States, came out to her keen vision 
like stars after the setting of the sun. This has been the 
great misfortune of the South, that the world did not turn 
around quite as fast at her end of the Union as it did in 
New England; and that it did not turn exactly in the 
same direction. The creed of the fathers, the creed of all 
sections in 1787, the creed of all the States for more than 
thirty years after the formation of the "more perfect 
Union ;" was substantially the creed of the South in 1861. 



IS DAVIS A TRAITOR? 13? 

There she stood. But, in the meantime, Massachusetts, 
and consequently all New England, having made one entire 
revohition, denounced her primitive creed — still the creed 
of the South,— that the States are "free, sovereign, and 
independent," as tlie invention of rebels and traitors, 
designing to put the glorious Union out of joint. True, 
the South did dislocate the Union, and breed fiery discord; 
but then, this was simply by standing still, and refusing to 
follow the rapid revolution of jSTew England. 

Argument from the silence of the Constitution. 

It is a remarkable fact, that, in the Constitution of the 
United States, there is not a word relating to the perpe- 
tuity or continuance of the GoA^ernment established by it. 
This momentous question is passed over in profound 
silence. xvTor was this omission an act of forgetfulness. 
It was, on the contrary, the result of deliberate design. 
The existing Articles of Confederation expressly provided 
that the government established by them should be " per- 
petual," and should never be changed without the unan- 
imous consent of all the States of the Union. This pro- 
vision was deliberately struck out, or not permitted to 
appear in the new Constitution. In the act of receding 
from the compact of the Union, which had expressly pro- 
nounced itself " per])etual," the fathers had not the face 
to declare that the new compact should last forever. 
Time had demonstrated the futility of such a provision. 
The Convention of 17(S7 had been most sadly hampered 
by it in their design to erect a new form of government, 
as appears from the Madison Papers, and other accounts 
of its proceedings. Hence they wisely determined to 
leave no such obstacle in the way of the free action of 
future generations, in case they should wish to new-model 
their government. It is certain that no such obstacle is 
found in the Constitution framed by them. 

Now what is the inference from this fnct, from this 

10 



138 IS DAVIS A TRAITOR? 

omission ? If the framers of the Constitution designed to 
make it perpetual^ binding, why did they not say so ? Xay, 
why did they depart from the plan before them, and 
refuse to say so? Only one answer can be given to this 
question. They did not intend to repeat the folly of seek- 
ing to render perpetual, by mere dint of words, those 
Articles of Union between Sovereign States, whose bind- 
ing force and perpetuity must necessarily depend on the 
justice with which they should be observed by the parties to 
them, or on their adaptation to the great ends for which 
they were enacted. The perpetuity, or continuance, of 
the new Union was frequently alluded to and considered 
in the Convention of 1787; and yet there is not one sylla- 
ble on the subject in the Constitution made by them. 
This speaks volumes. 

It is argued, in the Federalist* that as the old Articles 
of Confederation had utterly failed in consequence of 
defects which no one had foreseen; so the real objections 
to the new Constitution, whatever they might be, would 
in all probability remain to be disclosed by time and ex- 
perience. Reasoning from the past, it was concluded, 
that no one could foresee what its real defects were, or how 
great they might prove in practice. Would it not, then, 
have been infinitely absurd to pronounce it perpetual, or 
seek to stamp it with the attribute of immortality ? 

The truth is, that the new Constitution was designed by 
its authors to last just as long as it should be faithfully 
observed by the parties to it, or as it should answer the 
great ends of its creation, and no longer. On the failure 
of either of these conditions, then, in their view, the 
power by which it was ordained possessed the inherent and 
indefeasible right to withdraw from it. Otherwise there 
would be no remedy, not even in the sovereign power 
itself, for the greatest of all political evils or abuses. Other- 
wise we should have to repudiate and reject the great 

* No. xxxviii. 



IS DAVIS A TRAITOR? 139 

principle of American freedom, which has never been 
called in question by any statesman of the Xew World, 
or over which the least cloud of suspicion has ever been 
cast by any American citizen. 

What, then, is the position assumed by those who deny 
the right of secession? In asserting that a State has no 
right to withdraw from the Union, they declare that the 
Constitution, or Articles of Union, is perpetually binding. 
That is to say, by a forced construction, they introduce 
into the Constitution, the very provision which its framers 
most deliberately refused to insert therein ! They refused 
to say, that the new compact should be perpetual; and 
yet these interpreters declare, that they designed to make 
it perpetual ! 

Both Story and Webster admit, as we have repeatedly 
seen, that if sovereign States enter into a compact or Con- 
federation, without expressly prescribing any period for 
the continuance of the Union; then any State has the 
right to secede at pleasure. This is the true inference to 
be drawn from the silence of the Constitution as to the 
continuance of the Union : an inference too clear and un- 
questionable to be denied by either a Story or a Webster. 
If they have sought to evade its force, or obscure the 
right of secession: this is by assuming the ground, so 
fully exploded in the preceding pages, that the Constitu- 
tion was not a compact between the States of the Union. 

" It is sometimes asked," says Mr. Motley, " why the 
Constitution did not make a special provision against the 
right of secession. How could it do so ?" * Why, simply, 
by transferring the words of the old Constitution to the 
new, and saying " the union shall be perpetual." There is 
no impossibility in the case. The thing had been done 
once, and it might easily have been done again, if the 
framers of the Constitution had desired to do it. Many 
words, phrases, and provisions of the old Constitution 

* Eebellion Record, vol. i., p. 214. 



140 IS DAVIS A TRAITOR? 

were transferred by tliem to the new; and if they had 
wislied to do so, they might just as easily have transferred 
those words, "the union shall be perpetual," or last 
till all the parties consent to a separation. " How could 
they do so?" asks Mr. Motley; and I reply, how could he 
ask so silly a question? 

" it would have been puerile," says he, " for the Consti- 
tution to say formally to each State, tliou shalt not secede." 
There was no necessity, perhaps, that the Convention 
should have been very formal in the language it addressed 
to the States. But would it have been puerile, or ridicu- 
lous, if the Convention had said, " the Union shall be per- 
petual." Who can doubt that if these words had been 
inserted in the new Constitution, that Mr. Motley would 
have wielded them as an unanswerable argument against 
the right of secession? Indeed, these words answer that 
purpose so well, that Dr. Hodge borrow them from the 
old Articles of Confederation, and passes them off as " the 
very words " of the Constitution, in order to demonstrate 
the palpable absurdity of secession; in order to show 
that secession is in direct and open defiance of " the 
avowed design of the compact " of 1787. These words were, 
indeed, the very ones he needed to demolish the right of 
secession; and his need was so great, that he came at 
them in no very legitimate way. Could any thing be 
more feeble, or puerile, than Mr. Motley's attempt to 
account for the silence of the Convention on the momen- 
tous subject of secession? or more clearly illustrate the 
difficulty of getting rid of the argument from that silence 
in favor of secession? The truth is, that the Convention, 
in its desire to secede from the old compact, was so greatly 
embarrassed by the clause declaring that " the TTnion 
shall be perpetual," that it deliberately removed that 
obstacle from the path of future legislation : and, whether 
it was intended by the Convention or not, the legal effect 
of this was to establisli the I'iglit of secession under the 
new coiu])act between tho same parties. 



IS DAVJS A TKAlTOIl? 141 

Argument from the Fundamental Principle of the Union. 



a n 



To render a Federation desirable/' says Mr. John 
Stuart Mill^ '* several conditions are necessary. The first 
of these is, that there should he a sufficient amount of 
mutual sijuipathij amontj the populations.'"^ This sentiment 
recommends itself to the ^ood sense of every man in the 
world; nay, to every man who is not insane from the in- 
fluence of passion. Even Mr. Greely, before the war^ could 
say, — " We hope never to live in a Eepublic, whereof one 
section is pinned to another by bayonets.^' Such is in- 
deed the desire of every good man, nay, of every rational 
being- ; for. as Mr. Mill says, no union of States is desirable, 
unless it be held together by the cement of good feeling, 
as well as of interest. 

In like manner, John Quincy Adams says \ " The indis- 
soluble link of union between the people of the several 
States of this confederated nation is, after all, not in the 
right, but in the heart. If the day should ever come, (may 
Heaven avert it) when the affections of the people of these 
States shall be alienated from each other; when the fra- 
ternal spirit shall give way to cold indifference, or collision 
of interest shall foster into hatred, the bands of political 
associations will not long hold together parties no longer 
attracted by the magnetism of conciliated interests and 
kindly sjmipathies; and far better will it be for the 

PEOPLE OF TTTE DISUNITED STATES TO PART IN" FRIENDSHIP 
FROM EACH OTHER^ THAN TO BE HELD TOGETHER BY CON- 
STRAINT. Then will be the time for reverting to the 
precedents which occurred at the formation and adoption 
of the Constitution, to form again a more perfect union, 
by dissolving that which could no longer bind, and to leave 
the separated parts to be re-united by the law of politi- 
cal gravitation to the centre." 

'^ Better,'' says Mr. Adams, " to part in friendship, than 

* Representative GovemTiient, chap. xvii. 



142 JS DAVIS A TRAITOR? 

to be held together by restraint." History, it is said, 
repeats itself. Some of the Greek States, wishing to part 
in peace from their confederates, were held together 
by force of arms. This, says Freeman, in his learned work 
on Federal Government, ultimately proved injurious to 
those who drew the sword of coercion. 

Argument from the Right of Self- Government. 

The thirteen Colonies, in the Declaration of Independ- 
ence, justified their separation on the distinct ground, that 
all " governments " derive " their just powers from the con- 
sent of the governed." It was in obedience to this great 
principle, that the American Union became a free and vol- 
untary association of States. This, by its very nature, ex- 
cludes the idea of coercion. For, if States are compelled to 
remain in the Union against their will, this is subjugation, 
and not a copartnership in honor, interest, freedom, and 
glory. It destroys the autononi}^, annihilates the freedom, 
and extinguishes the glory of the subjugated States. The 
system is transformed. It is no longer a sisterhood of free 
States, but the vassalage of some, and the dominion of others. 

This is so obvious, that it was declared at first, even by the 
most zealous advocates of President Lincoln, that no one 
intended to coerce a State. "VVliat then? Did they mean 
to let it go in peace? No, they neither intended to coerce 
a seceding State, nor let it depart ! But how was such a 
thing possible? Why, these admirable casuists, by a most 
refined and subtle distinction, determined that they would 
not coerce a State, but only the people of whom it is com- 
posed ! The State secedes. The citizens acknowledge 
their allegiance to the State, and determine to obey the 
ordinance of secession. And thereupon the Federal Gov- 
ernment resolves to wage war, not upon the State itself, 
but only upon the people of the State ! Happy State ! 
Miserable people! The one may depart; but the other 
must come back ! But if the Federal Government had 



IS DAVIS A TRAITOR? 143 

only waged war upon the State^ how would it have pro- 
ceeded otherwise than it did? 

The authors of this very nice distinction, were evidently 
driven to assume such a position, by the horror which 
Madison, Ellsworth, Mason, Hamilton, and other fathers 
of the Constitution, were known to have expressed at 
the idea of the coercion of a State. No ! they would not 
coerce a State; they would not be guilty of the horrid 
thing so eloquently denounced by the fathers; they would 
only wage war on the men, women, and children of whom 
the State is composed ! How admirable the acuteness! 
How wonderful the logic. 

In 1848, Mr. Lincoln had not forgotten his very first, 
and nearly his very last, lesson in the science of govern- 
ment. He had read it in the Declaration of Indepen- 
dence; he had heard it recited in school; he had heard it 
most eloquently spouted every fourth of July. How, 
then, could he forget it, without some very powerful 
motive? l^o humble rail-splitter, no honest citizen, could 
forget such a lesson. It requires a great politician, or a 
President, to forget, despise, and trample such things un- 
der foot. Hence, in 1848, the humble citizen, Abraham 
Lincoln, like every other American citizen, publicly de- 
clared^ that " any people whatever have the right to abolish 
the existing government, and form a new one that 
suits them better. This is a most valuable, a most sacred 
right." Yes, any people whatever; the thirteen British 
Colonies; the Greeks; the States of South America; 
Poland; Hungary; any and every people under the wide 
expanse of heaven; except the people of the South. But 
why except the South? The reason is plain. It was, in- 
deed, most perfectly and fully explained by Mr. Lincoln 
himself. Wlien asked, as President of the United States. 
" why not let the South go ?" his simple, direct, and honest 
answer revealed one secret of the wise policy of the 
Washins^ton CabineL " Let the South s:o !" said he. 



114 IS DAVIS A TRAITOR? 

" tvlicre, ilien, sliall ice get our revenue?'' There lies the 
scciT-t. The Declaration of Independence is great; the 
voice of all tlie fathers is mighty; but then they yield us 
no revenue. The right of self-government is " a most 
valuable, a most sacred right;" but in this particular 
case, it gives us no revenue. Hence, this " most valuable, 
this most sacred right," may and should shine upon every 
other land under lieaven : but here it must " pale its inef- 
fectual fires," and sink into utter insignificance and con- 
tempt in the august presence of the " Almighty Dollar." 

As the object of the Black liepublican leaders, in wish- 
ing to retain the South, was not to lose revenue; so now 
tliat they have the South, the only use they have for her 
is to lay taxes and other burdens of government upon her. 
In open and shameless violation of the great principle of 
'76, the South is united to the Xorth by the tie of " taxa- 
tion without representation." Is this " the sacred right " 
of self-government? The Union waged a seven years war 
to establish that right, and a four years war to demolish it. 

Every American citizen has taken in the idea of self- 
government with Ins mother's milk; has heard it from all 
his most venerated guides, teachers, and oracles, has pro- 
claimed it himself, perhaps, all his life as "a most valuable, 
and a most sacred right." Hence, he should not be 
required, all on a sudden, to proclaim the diametrically 
opposite doctrine. He should be allowed some little time, 
at least, to clear his throat for the opposite utterance. Is 
it not quite natural, then, that his early and life-long pre- 
judice in favor of the right of self-government, should have 
clung to the Editor of the Tribune, the great organ of the 
T?epublican party, even while that party was preparing 
the way for its subversion ? True, it was but an organ: yet 
had it so long, and so earnestly, proclaimed the great right 
of self-government, that some little time, at least, should 
have been allowed for it to come right around to the 
diametrically opposite position. Accordingly, on the 9th 



IS DxkVlS A TRAITOR r 145 

of November, three da^s after Mr. Lincoln's election, that 
organ uttered the sentiments : " If the cotton States 
shall become satisiied that they can do better out of the 
Union than in it, we insist on letting them go in peace. 
******* 

We must ever resist the right of any State to remain 
in the Union and nullify or defy the laws thereof. To 

WITHDRAW FROM THE UxiOX IS QUITE ANOTHER MATTER; 

and whenever any considerable section of our Union shall 
deliberately resolve to go out, we shall resist all coer- 
cive MEASURES DESIGNED TO KEEP IT IN. We hopC nCVer 

to live ill a Republic whereof one section is pinned to 
another by bayonets." 

Again, on the lUh December, just before the secession 
of South Carolina, the same organ said : " If it [the Decla- 
ration of Independence] justifies the secession from the 
British Empire of three millions of colonists in 1776, we 

DO NOT SEE W^IIY IT W^OULD NOT JUSTIFY THE SECESSION OF 
FIVE MILLIONS OF SOUTHERNERS FROM THE FEDERAL UnION 

IN 1861. If we are mistaken on this point, why does not 
some one show us iDlierein and why? For our own part. 
irliile irc flpiiy the right of slaveholders to hold slaves against 
the u'ill of the latter: we cannot see how tiuenty millions of 
people can hold ten, or even five, in a detested Union with 
them hy military force. ***** Jf seven or eight con- 
tiguous States shonld present themselves authoritatively 
at Washington, saying, ' We hate the Federal Union ; we 
have withdrawn from it; we give you the choice between 
acquiescing in our secession and arranging amicably all 
incidental questions on the one hand and attempting to 
subdue us on the other, we could not stand up for coer- 
cion, FOR SUBJUGATION, FOR WE DO NOT THINK IT WOULD 
BE JUST. We HOLD THE RIGHT OF SELF-GOVERNMENT EVEN 
WaiEN INVOKED IN BEHALF OF THOSE WHO DENY IT TO 
OTHERS. So MUCH FOR THE QUESTION OF PRINCIPLE.' " 
******* 



14G JS DAVIS A TilAlTOH? 

"Any attempt to compel them by force to remain would 
be contrary to the principles enunciated in the immortal 
Declaration of Independence^ contrary to the fundamental 
ideas on which human liberty is based/'^ 

On the 23d February, 1861, after the cotton States had 
formed their confederacy, the Tribune used this language : 
" We have repeatedly said, and we once more insist, that the 
great principle embodied by Jefferson in the Declaration 
of American Independence, that Governments derive their 
just powers from the consent of the governed, is sound and 
just; and that if the slave States, the cotton States, or the 
gulf States only, choose to form an independent nation they 
HAVE A CLEAR MORAL RIGHT TO DO SO. Whenever it shall 
he clear that the great body of Southern people have become 
conclusively alienated from the Union, and anxious to escape 
from it, WE will do our best to forward their views/' 

President Buchanan, from whose interesting book the 
above extracts have been taken, adds : " In a similar spirit, 
leading Eepublicans everywhere scornfully exclaimed, 
' Let them go ;' ^ We can do better without them ;' ^ Let the 
Union slide,' and other language of the same import." 

Before the war, it was indignantly denied, that the 
abolitionists constituted more than a small minority of 
the Republicans. How is it since the war? Does not 
almost every man of them now claim that he has always 
been an abolitionist, and as such, come in for his share 
of glory in the forced emancipation of the slaves? It is 
certain, that of all the men in the Union, the abolitionists 
of the Eepublican party were the most active asserters, 
and the most powerful promoters, of secession and dis- 
union. They everywhere proclaimed, not only the right, 
but the sacred duty of secession. William Lloyd Garrison 
led the way. " In the expressive and pertinent language 
of Scripture," said he, " the Constitution ' was a covenant 
with death, and an agreement with hell,' null and void 
heforo Ood, from the first moment of its inception — the 



IS DAVIS A TRAITOR? 147 

framers of which were recreant to duty, and the supporters 
of which are equally guilty." * Yet, how strange ! the 
men of this school enlisted in the ranks, and fought under 
the banner of Mr. Lincoln; who was bound by his oath to 
support that " covenant with death and agreement with 
hell!'' Did they fight for the Constitution? Did they 
heartily join in the cry for the Union ? 

Again, he said "the motto inscribed on the banner of 
Freedom is, no Union with slave-holders "f * * * * 
" Our motto is, no Union with slave-holders '' either reli- 
gious or political." I [I am holier than thou !] " In with- 
drawing from the American Union, we have the God of 
justice with us." § Did this man, then, or his followers, 
fight for the Union ? " Circulate," he cried, " a declara- 
tion of DISUNION FROM SLAVE-HOLDERS THROUGHOUT THE 

COUNTRY. Hold mass meetings — assemble in Conventions 
— nail your banners to the mast." | [ Did these men, then, 
take down their banners, trample its motto in the dust, 
and join the loud war-cry for the Union of the fathers? 
If so, then it was not because they hated that Union the 
less, but because they hated Southerners the more. 

Now this man William Lloyd Garrison was an honest 
fanatic. He just came right down with a direct sledge- 
hammer force on all slave-holders, and on all the poor, 
pitiful, pulling h3rpocrites, who pretended to desire to pre- 
serve the Constitution and the Union; and who, to that 
end, labored to explain away the provisions of that " sacred 
compact," as they delighted to call the Constitution. 
" Those provisions," said they, " were meant to cover 
slavery," yet " as they may be fairly interpreted to mean 
something exactly the reverse, it is allowable to give 
them such an interpretation, especially as the cause of Free- 
dom will be thereby promoted"^ In thus stating this hypo- 
critical position, Mr. Garrison must have had Mr. Sumner 

* Anti- Slavery Examiner, Vol. xi, p. 101. f Ibid, p. 101 

JTbid, p. 118. §Ibid, p. 119. || Ibid, p. 119. ^ Ibid, p. 104. 



14cS IS DAVJS A TUAlTOUr 

in his niincl's e3'e. But with honest scorn and contempt he 
tears the mean fabric to tatters, and scatters it to the 
winds I '' ''I'liis/' says he, " is to advocate fraud and vio- 
lence to one of the contracting parties, whose co-operation 
luas secured only hij an express agreement and undertalcing 
bettveen them hotli, in regard to the clauses alluded to; and 
that such a construction, if enforced by laws and penalties, 
would unquestionably lead to civil war, and the aggrieved 
party would justly claim to have teen betrayed, and robbed 
of tlieir Constitutional rights." * 

" No honest use can be made of it/' says he, " in opposi- 
tion to the plain intention of its framers, except to declare 
the contract at an end, and to refuse to serve under it.'' f 
It is of no use to lie, said he, the Constitution is '^ a con- 
tract '" between the States ; an " express agreement and 
undertaking '' between the Xorth and the South. He 
-will not have this " express agreement " explained away. 
" It IS objected," says he, ^' that slaves are held as prop- 
erty, and therefore, as the clause refers to persons, it can- 
not mean slaves. Slaves are recognized not merely as 
property, but also as persons, — as having a mixed charac- 
ter — as combining the human with the brute. This is 
paradoxical, we admit; but slavery is a paradox — the 
American Constitution is a paradox — tlie American Union 
is a paradox — tlie American Government is a paradox — 
and if any one of these is to be repudiated on that ground, 
they all are. That it is the duty of tlie friends of free- 
dom to deny the binding authority of them all, and to 
secede from all ice distinctly affirm. "I 

Such were tlie sentiments of Mr. IJoyd Garrison, ia 
1844, delivered in their annual address to the Anti-slavery 
society of America, as its president. Precisely the same 
sentiments were entertained by the two learned secretaries 
of that society, namely, Wendell Phillips and Maria Weston 

* Anti-iSlaverv Examiner, Vol. xi, p. 104. 
t Thid. ' t Tbid. p. 114. 



/ 

IS DAVIS A TRAITOR? 149' 

Chapman, as well as by all its leading members. They 
proclaimed the duty of secession from the Constitution, 
from the Union, and from the Government of America. 
They wished to have nothing to do with slave-holders. 
In the mild and conciliatory language of their "president, 
they longed to get away and to live apart from those 
"incorrigible men-dealers, merciless tyrants, and blood- 
thirsty assassins/' * 

Such was the gentle and persuasive language, and such 
were the loyal sentiments, of the abolitionists from 1844 
to 18G1. The following resolutions were passed at a meet- 
ing of the American Anti-Slavery Society: 

Rcsolrrfh ' Tliat seoessioti from the United States Govemmeiit is 
' the dnty of every Aholitionist, since no one can take office or de- 
' posit his vote under the Constitntion without violating his anti- 
' slavery principles, and rendering himself an abettor to the slave- 
' holder in his sin.' 

Rrsolrcd, ' That years of warfare against the slave power has 
' convinced us that every act done in support of the American Un- 
' ion rivets the chain of the slave — that the only exodus of the 
' slave to freedom, unless it be one of blood, must be over the re- 
' mains of the present American Church and the grave of the 
' present Union.' 

Resolved, ' That the Abolitionists of this countrj' should make it 
' one of the primary objects of this agitation to dissolve the 
' American Union.' 

Yet of all the war-spirits in the country, these very 
men were the loudest and fiercest in their cries for a war 
of coercion to put down secession, as rebellion and treason. 
Tn its burning hate of the Union, the Tribune had 
become poetical, and addressed The A:\[ertcax Flag as 
follows : 

Tear down that flauntinsr He! 

Half-mast the starry fla^! 
Insult no sunny sky 

With hate's polluted rair! 

But. all on a sudden, that " polluted rag " became the most 
*Anti-^lavery Examiner, vol. xi., pp. 111-112. 



150 IS DAVIS A TRAITOR? 

sacred ensign of freedom that ever floated between heaven 
and earth ! The cry has gone forth : " This Union is a 
lie ! The American Union is an imposition. * * * -[ 
am for its overthrow. * * * -^jp ^^^j^ ^j^g ^^g ^f ^^g_ 
union, that we may have a glorious Eepublic of our own.^^ 
But anon and from the same person^ the opposite cry is 
heard : " Down with the flag of disunion, and up with the 
flag of the Union, that we may 'preserve the life of the 
nation/ the glorious Republic of the fathers.''^ Even the 
despised Constitution, " the antiquated parchment " of 
Henry "Ward Beecher, becomes all at once young, and fresh, 
and beautiful again ! and that Reverend gentleman stands 
before the world at Exeter Hall as the grand representa- 
tive of tho " constitutional union " party of this country. 

Is there, in the history of the world another instance 
of a change so sudden, so complete, and so wonderful in 
the avowed sentiments of any great body of men, as that 
which took place among the abolitionists of this county 
in 1861 ? l\ow whence all this intense love of the Union, 
where recently there had been such deadly hate? Whence 
this new-born desire to be forever associated with ''the 
merciless tyrants, the blood-thirsty assassins " of the South? 
TJie truth is, they did not love the Union then, and they 
do not want the Union now. They raised the cry of 
" the Union ;" because, as one of their leaders said, they 
believed they could "win on the Union." And having 
ridden into power on " the Union," and consolidated 
their power in the name of " the Union ;" they now resist 
the persistent efforts of President Johnson to restore the 
Union. 

But Mr. Greely has, in his " American Conflict," made a 
most awkward and unsatisfactory attempt to explain the 
course of the Union-hating and the Union-loving Tribune. 
It was, perhaps, a little difficult for him to speak out all 
that was in him on this delicate subject. The truth seems 
to be, 1. Thnt the word which went forth from President 



IS DAVIS A TRAITOR? 151 

Lincoln, '" If we let the South go, where shall we get our 
revenue?" is one of the causes of the great change in 
question. Several books had, in I860, been published to 
illustrate the subject of '^ Southern Wealth and Northern 
Profits," and, upon reflection, the North concluded that, 
after all, she had some use for the South. She was natur- 
ally indignant at the thought of losing the bird, which 
had so long laid for her the golden egg. 2. Secession 
offered a splendid opportunity, or occasion^ on which to 
wreak a little wrath on the slave-holders of the South, on 
those '^ incorrigible men-stealers, merciless tyrants, and 
blood-thirsty assassins," who so richly deserved to die. 
But it would, of course, be much more respectable to kill 
them as '^ rebels and traitors," than merely as slave-hold- 
ers. Hence, the very men who had been foremost and 
fiercest in preaching the duty of secession and disunion, 
became, all on a sudden, the most clamorous for the blood 
of secessionists as traitors to "the glorious Union," As 
the cynic, Diogenes, trampled on the robe of Plato's 
pride with a still greater pride ; so the abolitionists panted 
for the blood of " blood thirsty assassins " with a still 
greater thirst. Hence, more than any other class of men, 
they insisted that Mr. Lincoln, however reluctant, should 
" cry havoc, and let slip the dogs of war." 3. Secession 
furnished a fine pretext, a glorious occasion, for the forced 
emancipation of the slaves at the South. Hence, just be- 
fore Mr. Lincoln publicly declared that he had neither the 
wish, nor the power, to interfere with slavery in the 
States, the word privately went forth from a member of 
his Cabinet, that secession should be punished with the 
emancipation of the blacks, and with the utter devastation 
of the South, by fire and sword.* This word was, 
of course, intended for " the faithful." For if, at that 

* Perhaps that member of his Cabinet knew the design of Mr. 
Lincoln's administration better than it was then known to Mr. 
Lincoln himself. 



152 IS DAVJS A TKAITOJI? 

early day, siicli a design had been publicly avowed, it 
would have filled the North with auiazement, horror, 
and disgust. But has it not been accomplished to the 
very letter? 

Such were the causes, especially the last two, by which, 
it seems to me, so wonderful a revolution was produced in 
tlie political views and aspirations of the Xorthern abol- 
itionists. The change appeared like magic. " The anti- 
quated parchment" was renovated; the "polluted rag" 
was purified; and the Union became, not only habitable, 
but the only fit habitation for free men. But, then, the 
Union was not to be " the more perfect Union '' of the 
fathers; the Constitution was not to be the compact of 
1787; and "hate's polluted rag" was to be consecrated 
and glorified by hate. On the contrary, the Union was 
to be cast into the furnace of war, seven times heated, 
and to come forth free from the sin of slavery, and 
cemented, not by " the mutual sympathy of its popula- 
tions," but by their blood. It was to be a new Union; a 
bright and beautiful emanation ; not from the consent of 
the governed, but from the sovereign, the supreme, the 
sublime will of the Northern abolitionists. How lustily 
soever they joined in the war-cry for the Union, this was in 
order that they might the more effectually overthrow it, 
and ordain one of their own in its place. Is not this the 
true secret of their new-born love for "the glorious Union ?" 

Previous to the war, it was frequently alleged, that the 
abolitionists constituted only a small minority in the Re- 
publican party. It is certain, that they controlled the 
policy of Mr. Lincoln's administration. " The higher 
law%" " the law written on the liearts and consciences of 
freemen," was the rule of their conduct. For the Consti- 
tution, for the compact of 1787, for that "covenant with 
death and agreement with hell," they cared less than 
nothing; except when it agreed with their own will, or 
could be made a pretext for their dark designs. The fact. 



/ 

153 



that there was not the shadow of an authority for coercion 
in the Constitution^ had not the least weight with them. 
]^ay, if the power to coerce had been expressly denied to the 
Federal Government in the Constitution; this provision 
would have been easily explained away, or overruled by 
" the law written on the hearts and consciences of freemen.'' 
It would have been but a " straw to the fire i' the blood." 
President Buchanan could not find the power to coerce 
a State in the Constitution he had sworn to support. In 
like manner. Professor Bernard, of Oxford, England, find- 
ing no authority for the coercion of a State in the Consti- 
tution of 1787, pronounces it WTong. The same ground 
is taken by Mr. Freeman, of the same University, in 
his learned work on Federal Government. But if coer- 
cion is a wrong under the Constitution; then, surely, 
secession is a Constitutional right. Every man has the 
]eg:-.l fighl: to do any thing, which is not forbidden by the 
law of the land. He may not have the moral, but he has 
the legal, right to do it. A miserly act, for example, espe- 
cially in a rich man, is morally and socially wrong. But 
if there is no law against it, then, however rich the man 
may be, he has the legal right to do it. We may despise 
the act: we may abhor it; and we may denounce it as 
bitterly as any one ever denounced secession. But still, 
in the case supposed, the act is done in the exercise of 
a legal right which every one is bound to recognize and 
respect. This ambiguity in the term riglit has, indeed, 
been the source of no little darkness and confusion in the 
discussion of moral and political questions. Mr. Buchanan 
seems to have been confused by this ambiguity, wdien he 
denied both the riglit of coercion and the right of seces- 
sion. Surely, botli positions cannot be true, in the legal 
sense of the term riglit. For, if we say, that coercion is 
a constitutional wrong, or usurpation^ is not this saying 
that the Constitution permits secession, or, in other words, 
that it is a Constitutional right? 

11 



154 IS DAVIS A TRAITOR? 

This appears so clear to my mind, that when Mr. 
Buchanan denied the right of secession, I suppose he 
merely intended to condemn secession as a moral or social 
wrong. This is the way in which he must be understood, 
if we would not make him contradict himself. He may 
have dreaded, he may have abhorred, the act of secession; 
and he may, therefore, have pronounced it wrong in the 
forum of conscience. But if the Constitution does not 
authorize coercion, then it permits secession; or, in other 
words, secession is a Constitutional right, which every 
power on earth is bound to respect as existing under the 
supreme law of the land ; a Constitutional right, which the 
Federal Government could deny only by an act of usurpa- 
tion. 

Coercion is unconstitutional. Coercion is wrong. Coer- 
cion strikes down and demolishes the great fundamental 
principle of the Declaration of Independence, — the sacred 
right of self-government itself. Coercion wages war on 
the autonomy of free States. Secession, on the other 
hand, asserts the right of self-government for every free, 
sovereign, and independent State in existence. 

Virginia did not favor secession. But when the hour 
of trial came, she stood in the imminent, deadly breach 
between the secession of South Carolina and the coercion 
of Massachusetts ; receiving into her own broad bosom the 
fatal shafts of war, till she fell crushed, bleeding and ex- 
hausted to the earth. I appeal to the universe, then, if 
her course was not noble, heroic, sublime. 

Massachusetts has, on the contrary, favored both seces- 
sion and coercion by terms. The pilgrim fathers of Mas- 
sachusetts delighted in two things; first, in the freedom 
from persecution for themselves; and, secondly, in the 
sweet privilege and power to persecute others. In like 
manner, their sons have rejoiced in two things; first, in 
the right of self-government for themselves ; and, secondly, 
in the denial of that right to others. 



IS DAVIS A TRAITOR? 155 

Argurnent from the opinion of well-informed and intelli- 
gent foreigners. 

The position that secession is a Constitutional right, 
flowing from the idea that the Constitution is a compact 
between sovereign States, is adopted by man}^ impartial 
foreigners, who have been at the pains to examine our 
institutions for themselves. Thus says M. De Tocqueville, 
in his celebrated work on '^ Democracy in America :" 
" The Union was formed by the voluntary agreement of the 
States: and in uniting together they have not forfeited 
their nationality, nor have they teen reduced to the condi- 
tion of one and the same people. If one of the States 
choose to withdraw from the compact, it tuould he difficult 
to disprove its right of doing so, and the Federal Govern- 
ment ivould have no means of maintaining its claims direct- 
ly either by force or right/'"^ In like manner, Dr. Mackay 
says : " The Federal Government exists on sufferance only. 
Any State may, at any time. Constitutionally withdraw 
from the Union, and thus virtually dissolve it. It was not 
certainly created with the idea that the States, or several of 
them, would desire a separation; hut whenever they choose 
to do it, they have no obstacle in the Constitution." Mr. 
Spence also, to whom we owe this extract from Dr. Mackay, 
comes to the conclusion, in his able work on " The Ameri- 
can Union," that secession is a Constitutional right. Nay, 
he unanswerably establishes this conclusion, by facts which 
lie on the very surface of American history, and which, how- 
ever they may be concealed or obscured by the influence of 
party passions at home, cannot escape the scrutiny of 
impartial foreigners, who may simply desire to ascertain 
the truth in regard to such questions. After referring to 
the opinions of M. De Tocqueville and Dr. Mackay, Mr. 
Spence very justly remarks : " Here, secession is plainly 
declared a Constitutional right, not by excited Southern- 
ers, hut hy impartial men of unquestionable ability.'' f 

■'• Vol. i.. chap, xviii., p. 413. f The Aineriean ITnion. p. 201. 



!•")<) IS DAVIS A TRAITOR? 

An intelli^ucnt foreigner, as l)e Solnie, in liis admirable 
treatise on the Constitution of England, observes, pos- 
sesses some very decided advantages in tlie study of the 
fundamental institutions of a country. This is specially 
true in regard to all questions, which have been drawn 
into the vortex of party politics, and mixed up with the 
struggle for power and the emoluments of office. Never 
has its justness been more forcibly illustrated, than in 
regard to the' contacting tlieories of the Constitution of 
the United States. Though Lord Brougham, to select 
only one example, most profoundly sympathized with the 
abolitionists of the Xorth; 3'et, in spite of all his natural 
affinities, the simple facts of history constrained him to 
adopt the Southern view of the Constitution. Hence, in 
his work on Political Philosophy, he says : '^ It is plainly 
impossible to consider the Constitution which professes to 
govern this whole Union, this Federacy of States, as any 
THixG OTHER THAX A TREATY.''* Accordingly, he speaks 
of the American Union of States, as " the Great League." 
It required no great research, or profound logic, to reach 
this conclusion. On the contrary, it requires, as we have 
seen, the utmost effort to keep facts in the back-ground, 
and all the resources of the most perverse ingenuity, to 
come to any other conclusion. It is, indeed, only neces- 
sary to know a few facts, with which every student of our 
history is perfectly familiar, and which are well-stated by 
Lord Brougham, in order to recognise the fundamental 
principle of the " Great League." " The affairs of the col- 
onies," says he, " having during the revolutionary war 
been conducted by a Congress of delegates for each, on 
the restoration of peace, and the final establishment of 
their independence, they formed this Federal Constitution, 
which was ouhj f/radually adopted hy the different memhers 
of the Great League. Nine States having ratified it, the 
new form of government went into operatio n on the 4th of 

* Vol. iii., chap, xxx., p. 336. 



IS DAVIS A TKAITOK? 157 

^larch, 1198. Before tlte end of 1790 it had received the 
assent of the remaining States/' These facts alone, it is 
believed, are absolutely decisive in favor of the position, 
that the American Union was a voluntary association of 
States, or a compact to vhicli the States were the parties. 
Hence it is that foreigners, whether impartial or preju- 
diced against the South, adopt the Southern view of 
the Constitution, when they examine the subject with the 
least care. 

It is natural, indeed, that foreigners, before they exam- 
ine the subject, should look upon the American people as 
one consolidated nation; for that is the external appear- 
ance whicli they present to those who view the affairs 
of this continent from a distance. But like a multiple 
star, which in the distance seems to be a single lumi- 
nary to the naked eye, the American Union is no sooner 
approached, or more closely examined, than it is resolved 
into a constellation of sister States. Xothing but party 
passion, it is believed, can resist so plain a conclusion; 
just as the clearest revelations of the telescope were vehem- 
ently denied by many of the most learned contemporaries 
of Gallileo. Hence it is that De Tocqueville, and Mackay, 
and Spence. and Broughham, and Cantu,* and Heeren,f as 
well as other philosophers, jurists and historians among 
the most enlightened portions of Europe, so readily adopt 
the Southern view of the Constitution, and pronounce the 
American Union a confederation of States. 

Argument from tlie Virginia Ordinance of Batificafion. 

A great many unfounded objections were urged against 
the Constitution by its enemies. Mr. Madison has, in the 
thirty-eighth number of the Federalist^ drawn a powerful 
picture of '' the incoherence of the objections to the plan 
proposed:*' that is, to the Constitution of 'ST. Xow this 

* Historie Universelle, originally written in Italian, vol, xvii., 
p. 371. t '■ Euroi>ean States and Colonies," p. 350-351. 



158 JS DAVIS A TRAITOR? 

chaos of conflicting objections, which were raised by the 
enemies of the Constitution in order to defeat its adoption, 
could not truly reflect the nature and design of that plan 
for the government of the Union. Yet, however strange 
it may seem, Mr. Justice Story and Mr. Webster have, 
as we have seen,* selected one of these objections to show 
what the Constitution is; though this very objection had 
been most triumphantly refuted by Mr. ^ladison, both in 
the Federalist and in the ratifying Convention of Virginia. 
By the same sort of logic, if logic it may be called, they 
might have fastened almost any other absurd interpreta- 
tion on the Constitution, as well as the construction that 
it was ordained by the people of America as one nation, 
and not by the several States. By appealing to the objec- 
tions of Patrick Henry alone, as an authority, they might 
have proved that there was " not one federal feature " in 
the Constitution of '87, as well as a dozen other glaring 
absurdities; and that the fathers of the Constitution did 
not know Avhat they were about when they called the 
work of their own hands^ ''The Federal Government of 
these States." 

In the ratifying Convention of Virginia, Patrick Henry 
frequently dwelt, with great earnestness, on the danger of 
entering into a new and untried Union, from which there 
might be no escape. Virginia is now free, said he, and the 
mistress of her own destiny. But once in the new Union, 
the power of the General Government may be wielded for 
her injury and oppression. This result was, in fact, elo- 
quently predicted by Patrick Henry, George Mason, Wil- 
liam Grayson, and other members of the same Convention. 
This argument proceeded on the supposition, either that 
Virginia would not have the right to secede from the 
Union, or else that this right would be denied by her 
oppressors. The debates in the Virginia Convention of 1788 
are, indeed replete with passages of burning eloquence, 

* Chap, xi., pp. 84-5. 



IS DAVIS A TRAITOR? 159 

which predict the calamities that would fall on that noble 
State^ as well as on other Southern States, from the oppres- 
sions of "the Northern majority/^ Hence, the people 
of Virginia, in their ordinance of ratification, took the pre- 
caution to guard against this danger, by expressly reserv- 
ing the right to resume the powers delegated to the Federal 
Government " whensoever the same shall be perverted to 
their injury or oppression." 

The view which A'^irginia has taken of her own ordi- 
nance is disputed. The words of this ordinance are as 
follows : " We, the delegates of the people of A^irginia, duly 
elected, &c Do in the name, and in behalf of the peo- 
ple of Virginia, declare and make known, that the powers 
granted under the Constitution, being derived from the peo- 
ple of the United States, he resumed by them whensoever 
the same shall be pervertd to their injury or oppression." 

Mr. Webster understood these words, " the people of 
the United States," precisely as he understood them in the 
preamble to the Constitution. Hence, he quotes the Vir- 
ginia ordinance of ratification, in order to show that the 
Constitution was established, not by the States, nor by 
the people of the States, but by " the people of the United 
States in the aggregate," or as one nation. But, as we 
have repeatedly seen, this is a false view of the words in 
question. They were not so understood by the A^irginia 
Con\ention of 1788. In that Convention, Mr. Madison 
most clearly and fully explained these words, precisely as 
he had previously done in the Federalist. The powers of 
the new government are derived, said he, from the people of 
the United States, " but not the people as composing one 
great society, but the people as composing thirteen sove- 
reignties." Such was the meaning of the words in question, 
as explained by James Madison, to whom the Convention 
looked for information on the subject, and by whom they 
were led to adopt and ratify the Constitution. Yet these 
words are quoted by Webster, Everett, and other politi- 



IGO IS DAVIS A TRAITOR? 

cians of Massachusetts^ in order to show that, in tlie opinion 
of the Virginia Convention of 1788, the Constitution of the 
Ignited States was ordained by the people of America as one 
nation ; and that the people of America as one nation may, 
tlierefore, resume the delegated powers " whensoever they 
shall be perverted to their injury or oppression." To 
this interpretation and inference, there are several insuper- 
able objections. 

In the first place, the Constitution Avas not to be estab- 
lished by the people of America as one nation, or by " the 
people of the United States as one great society;" and 
this fact was perfectly well known to the Virginia Con- 
vention of 1788. It has already been sufficiently demon- 
strated, that the Constitution was ordained, not by the 
people of America as one great society, but by each Peo- 
ple acting for itself alone, and to be bound exclusively by 
its own voluntary act. It would be a gross solicism in 
language, as well as in logic, to say that the people of the 
United States as one great society, might resume powers 
which were not delegated by them. The sovereignty which 
delegates, is the sovereignty which resumes; and it is 
absurd to speak of a resumption of powers by any other 
authorit}', whether real or imaginary. 

In the second place, the evil intended to be remedied 
shows the true meaning of the words in question. The 
Virginia people did not fear, that the people of the United 
States might pervert the powers of the Federal Govern- 
ment for their own oppression. Their fears were for the 
weak, not for the strong; not for the people of the United 
States in the aggregate, but for the Southern States in 
the minority; and especially for the State of Virginia. 
They feared, as the burning eloquence of Henry, and 
^Mason, and Monroe, and Grayson evinced, that the new 
Government would " operate as a faction of seven States 
to oppress six;" that the Northern majority would, sooner 
or later, tramj^le on the Southern minority. They feared, 



IS DAVIS A TRAITOR? 161 

in the language of Grayson^ that the new Union would 
be made '* to exchange the poverty of the North for the 
riches of the South." In the words of Henry, " This 
Government subjects everything to the Northern majority. 
Is there not, then, a settled j^urpose to check the 
Southern interest? We thus put unbounded power over 
our property in hands not having a common interest with 
us. How can the Southern members prevent the adoption 
of the most oppressive mode of taxation in the Southern 
States, as there is a majority in favor of the Northern 
States? Sir, this is a picture so horrid, so wretched, so 
dreadful, that I need no longer dwell upon it." * Did the 
Convention of Virginia, then, seek to quiet these dreadful 
apprehensions, by declaring, that the people of the United 
States ^' as one great society," might resume the powers 
of the Federal Government whensoever they should 
be perverted to their oppression? By declaring, that this 
one great societ}', or rather the majority of this society, 
migh resume the powers of the Federal Government 
whensoever they should be pleased to use them for the 
oppression of the minority? Could any possible interpre- 
tation render any legislation more absolutely ridiculous? 
It puts the remedy in the hands of those from whom the evil 
is expected to proceed ! It gives the shield of defence to the 
very power which holds the terrible sword of destruction ! 

The Convention of Virginia spoke " in behalf of the 
people of Virginia;" and not in behalf of the overbearing 
majority, by whom it was feared these people might be 
crushed. They sought to protect, not the people of Amer- 
ica, who needed no protection, but the people of Virginia. 
Hence, as the people of Virginia had delegated powers to 
the Federal Government, they reserved " in behalf of the 
people of Virginia," the right to resume those powers 
whensoever they should be perverted to their injury or 
oppression. 

* Elliot's Debates, vol. iii., p. 312. 



162 IS DAVIS A TRAITOR? 

Now this reservation enures to the benefit of all the 
parties to the Constitutional compact; for as all such com- 
pacts are mutual, so no one party can be under any 
greater obligation than another. Hence, a condition in 
favor of one is a condition in favor of all. This well- 
known principle was asserted by Mr. Calhoun in the great 
debate of 1833, with the remark that he presumed it 
w^ould not be denied by Mr. Webster; and it was not de- 
nied by him. Hence any State, as well as Virginia, had 
the express right to resume the powers delegated by her 
to the Federal Government, in case they should be per- 
\erted to her injury or oppression. 

But, it may be asked, were the powers of the Federal 
Government perverted to the injury or oppression of any 
Southern State? It might be easily shown, that they 
were indeed perverted to the injury and oppression of 
more States than one; but this is unnecessary, since the 
parties to the compact, the sovereign States by whom it 
was ratified, are the judges of this question.* 

* See Virginia Resolutions of '98; Kentucky Resolutions of '98 
and '99; the Virginica Report of 1800, &c., &c. 



CHAFTEE XVII. 

Arguments against the Right of Secession. 

Having considered the arguments in favor of the right 
of secession^ it is^ in the next place, proper to analyze and 
discuss those which have been most confidently urged 
against that right. Among these, none have been relied 
on with greater confidence, than those which are supposed 
to flow from the express language of the Constitution. 
This class of arguments shall, therefore, occupy the first 
place in the following examination and discussion. 

Argument from " the very ivords " of the Constitution. 

Now this argument comes directly to the point. Let us 
see, then, these "very words and avowed design of the 
compact"* of 1787, by which the right of secession is 
repudiated and rejected. " The contracting parties," we 
are told, stipulate that " the Union shall be perpetual." f 
Again, the same writer says, " these States are pledged to 
a perpetual Union;" quoting, as he supposes, the very 
words of the Constitution. But, unfortunately, for his 
confident argument, these words are not to be found in 
the Constitution at all. They are evidently taken from 
the old Articles of Confederation ! Would it not be well, 
if learned doctors of divinity would only condescend to 
read the Constitution, before they undertake to interpret- 
ate it for the benefit of their confiding flocks ? Especially,. 

* The Eev. Dr. Hodge on the State of the Country, p. 24. 
t Ibid, p. 25. 

[163] 



1 <">-!: IS DAVIS A TRAITOR? 

should they not take some littk' pains to ascertain "the 
very words of the compact'- of 1787, before they erect on 
its very words the graxe charge of treason against their 
'' Soutliern brethren ?" 

Tlie Constitution, says an English writer, does "ex- 
pressly prohibit the States fi-om entering into any treaty, 
alliance, or confederation, such as the so-called Southern 
Confederacy.'' * This argument is relied on with great 
confidence. It may be found in all the books, pamphlets, 
and publications, with which the opponents of secession 
have flooded the English public on the "American Ques- 
tion." Yet, as it appears to me, it clearly admits of two 
perfectly satisfactory replies. 

In tlie first place, the Constitution, or the new "Arti- 
cles of Union,'' is obligatory only upon the members of the 
Unio]]. Xo one supposes that the States could, while 
remaining in the Union, form any other " treaty, alliance, 
or confederation." But their duty while in the Union is 
one thing, and their right to withdraw from the Union is 
quite another. In the articles of any partnership, whether 
great or small, a clause may be inserted forbidding the 
parties to enter into any other partnership of the same 
kind, or for the same purpose. Indeed this is often done. 
But who, for a moment, ever imagined that such a clause 
would render the partnership ])erpctual, or forever pre- 
vent any of its members from withdrawing from the firm? 

In tlie second place, the words in question were trans- 
ferred from the old to the new "Articles of Union." Thus, 
say the old Articles, "No two or more States shall enter 
into any treatv, confederation , or alliance whatever 
between them." f Now this clause was binding as long as 
tlie Confederation continued. But did it prohibit " any 
two or more States " from withdrawing from the Union, 
in order to establish "a more perfect" one? By no 
means. It is, on the contrary, perfectly notorious, that 

* Ludlow's History of the United States. f Art. vi. 



165 

some of the States did withdraw from that LTnion in order 
to form the Union of 17 ST. Hence, nothing but the blind 
force of passion can render this chmse more obligator}^ in 
the new "Articles of Union " or in the Constitution, than 
it was in the old one. 

Nay, if w^ords could have made any union of States per- 
petual, the old Articles of Confederation w^ould still form 
the supreme law of the American Union. For the thir- 
teenth Article expressly declares, that " the articles of this 
confederation shall he obser\ed by every State, and tlie 
Union shall he perpetual; nor shall any alteration at any 
time hereafter be made in any of them, unless such altera- 
tions be agreed to by a Congress of the United States, and 
be afterward confirmed hi/ the Legislatures of every State/' 
Yet, in spite of these words, some of the States did with- 
drawn from that " perpetual union,'' and formed a new one. 
The people of 1787 refused to be bound by the people of 
1778. They deemed themselves no less sovereign than 
their predecessors. Hence, in the words of the English 
wTiter above-quoted, " the plan of course failed, like all 
similar attempts to fetter future legislation." * 

^NTo words, and no principle of law or justice, could render 
such Articles of Union forever binding on free, sovereign, 
and independent States. Nothing but passion, or brute 
force, could have compelled the millions of 1865 to bend 
their necks to the legislation of 1787 against their will. 
The Union of '87 owed its existence to secession from a 
voluntary association of States : and being itself a volun- 
tary association of States, it could not escape from the 
law of its creation. The right of secession was indeed, 
the law both of its origin and its existence. 

The English writer, who argues so confidently against 
the right of secession from the words of the Constitution, 
does not seem to have l)een at all aware that those words 
were borrowed from the old Articles of Confederation, 

* Ludlow's History of the United States, pp. 143-4. 



166 IS DAVIS A TRAITOR? 

or that the Convention of 1787 had understood them very 
differently from liimself. The people of this country were 
bound by the legislation of 1787, not by Mr. Ludlow's 
mistakes and blunders respecting that legislation. 

The right of coercion is sometimes deduced from that 
clause of the Constitution, which contains the President's 
oath of office, and which requires him to " preserve, pro- 
tect, and defend the Constitution of the United States." 
This is, indeed, the great argument against secession from 
the words of the Constitution. But it is a gross solicism ; 
a petitio principii as plain as possible. For, if by and 
under the Constitution, a State has a right to secede from 
the Union: then the President is sworn to preserve, not 
to destroy, this Constitutional right. Hence, when it is 
argued that the President is bound to coerce in order to 
])reserve, protect, and defend the Constitution ; it is 
assumed that, in the view of the Constitution, secession is 
wrong and coercion is right; which is very clearly to beg 
the question. It takes the very point in dispute for 
granted. Such an argument, such a fallacy, may have 
satisfied those Avho were passionately bent on coercion ; 
but. in the eye of reason, it is wholly destitute of force. 
If a State had the Constitutional right to secede, and did 
secede, then she was out of the Union; and the President 
had no more power to execute the laws of the United 
States within her limits, than he had to enforce them in 
the dominions of Great Britain, or France, or Russia. The 
President's ontli of office requires him, not to usurp any 
power, but only to exercise those which are conferred on 
him by the Constitution. 

Arrinmcnt from the Wisdom of flic Fathers. 

An argument against the right of secession is deduced 
from the wisdom of the framers of the Constitution. It 
is supposed, that men who were so remarkable for their 
sagacitv and wisdom, would not have undertaken to erect 



TS DAVIS A TRAITOR? 167 

a grand Confederacy of States, and yet have been so 
absurd as to allow a State to secede from it. It is argued, 
that they could not have intended to astonish the world 
with the " extraordinary spectacle of a nation existing 
only at the will of each of its constituent parts."* 

This argument, which is urged bv Judge Story, and 
others, amounts simply to this, that the fathers of the 
Constitution could not have been such fools as to make a 
compact between the States. For it is conceded, that this 
extraordinary spectacle, this wonderful exhibition of 
weakness, results from the doctrine that the Constitution 
is a compact between the States. The conclusions, says 
Mr. Justice Storv. " which naturally flow from the doc- 
trine that the Constitution is a compact between the 
States," " go to the extent of reducing the government to 
a mere confederacy during pleasure; and of thus ptresent- 
ing the extraordinary spectacle of a nation existing only 
at the will of each of its constituents parts." Hence, in 
the opinion of Judge Story, all that is wonderful in this 
spectacle resolves itself into the most unaccountable fact, 
that the fathers should have framed "a compact between 
the States !" A thing which has been frequently done in 
the history of the world, and which, as we have seen, was 
actually done by the Convention of 1787. It is impossible, 
exclaims Judge Story; we simply reply, it is a fact. A 
learned doctor, in one of Moliere's plays, argues that, after 
taking his remedy, it was impossible that his patient 
should have died. But the poor servant, who was not 
blessed with half the doctor's learning or ingenuity, was 
weak enough to believe that the fact of his death was 
some little evidence of its possibility. The question is, 
not what the fathers in the opinion of one of the sons, 
ought to have done, but what they have actually done. 

The son in question, for example, is shocked and aston- 
ished at the " extraordinary spectacle of a nation existing 
* Story' Commentary on the Constitution. Book iii., ch. iii. 



168 IS DAVIS A TKAITOR? 

at the will of its constituents parts." If this very learned 
son had only possessed a little more wisdom, lie would 
never have discovered^ perhaps, this wonderful spectacle 
of " a nation/' with " its constituent parts,'' or subordi- 
nate fractions. He would, on the contrary, have seen that 
the sovereign States wliich he calls " the constituent 
parts/' or the fractions, of his imaginary nation, are really 
the units of a confederation. I am rather inclined to 
doubt, therefore, whether such a son is the fittest of all 
possible tribunals l)efore which to try the wisdom of the 
fathers. 

After all, perhaps, it was no want of wisdom in the 
fathers, but only the conceit of wisdom in ourselves, which 
causes their work to present so " extraordinary a specta- 
cle." Indeed, if we infer the nature of their work, not 
from a» examination of what they have actually done, but 
from their wisdom, do we not reason from our own notions 
of wisdom? And are we not in danger of interpolating 
their conceptions with our own devices? The better 
method is to listen to the great teacher, Time, which esti- 
mates their wisdom from the nature of their work, and 
not the nature of their work from their wisdom. 

The question is, not what the fathers, as reasonable men, 
ought to have done; but what they have actually done. 
Perhaps their wisdom, even if perfect in itself, was 
sometimes held in abeyance by the prejudices, the pas- 
sions, and the interests by which it was surrounded. But, 
for the sake of argument, let us suppose that the new 
Constitution was made perpetually binding on the States, 
that the right of secession was excluded; and then ask 
ourselves^ what sort of spectacle would such a work pre- 
sent to the minds of reasonable men? Would it not appear 
far more extraordinary, than if the right of secession had 
been recognized ? Let us examine and see. 

'I'he scheme of a perpetual Union, excluding the right 
of secession, proceeded on the supposition, that a per- 



IS DAVIS A TRAITOR? 1G9 

petiial peace^ good faith and good will, would subsist among 
the States. This was the idea of Madison. The predic- 
tions of George Mason and others, in which they foretold 
the wrongs and aggressions of the N'orthern States, if 
armed with the formidable powers of the new govern- 
ment,* Mr. Madison just set aside as unfounded and un- 
charitable suspicions.! Now", in regard to this point, we 
need not ask who was the wiser of the two, George Mason 
or James Madison, nor need we tr}^ the question by any 
imperfect notions of our own. For Time has pronounced 
its irreversible verdict in favor of the wisdom of George 
Mason. 

Again, as each State bound its citizens to render alle- 
giance to the Federal Government by its own voluntary act, 
namely, the act of accession to the Constitution; so, if by 
her own sovereign will in the same way expressed, she 
may absolve them from that allegiance ; we can well under- 
stand the reasonableness of the arrangement. But if she 
may not secede or withdraw the allegiance of her citizens 
from the Federal Government; then it would be impossi- 
ble for them to escape the crime of treason. For, although 
the State should be driven by oppression to withdraw 
from the Union, her citizens would, according to such a 
scheme, be indissolubly bound by a double allegiance. 
Hence, if they should follow or obey their own State, they 
might be pursued and hunted down as traitors to the Fed- 
eral Government. Or^ if forsaking the State to which 
their allegiance was originally and exclusively due, they 
should adhere to the Federal Government, they w^ould be 
traitors to their own State, and so regarded. There 
would be no possible escape for them. N"ow, were such a 
scheme wise, or reasonable, or just? Would it not, on the 
contrary, present a monstrous spectacle of cruelty and 

* Elliot's Debates, vol. iii., pp. 30-164-149-156-1G1-164-173-174- 
590. 

t Ibid, 530-5G2. 



170 IS DAVIS A TRAITOR? 

oppression? Can we believe that the fathers, in order to 
secure the liberty of their descendants, erected such an 
engine of tyranny? Can we believe that they intended, 
in any event, to crush and grind their posterity thus 
between the upper and the nether millstones of the two 
governments? But whatever they may have intended, or 
designed, such is the horrible character of the two govern- 
ments in one, as explained by the very learned son in 
question. If his explanation be true, then it must be 
admitted, that the fathers, with all their wisdom, first 
constructed one of the most horrible engines of oppression 
the world has ever seen, and then pronounced it a scheme 
to " secure the blessings of liberty to themselves and their 
posterity." But I have too much respect for the wisdom of 
the fathers to construe their work into any such tremen- 
dous and terrific engine of oppression. On the contrary, I 
believe that as the allegiance of the citizen was originally 
and exclusively due to his State, and was extended to the 
Federal Constitution only by a sovereign act of his State; 
so, by a like sovereign act, the State may reclaiui his 
supreme allegiance. Otherwise, the machine invented by 
the Convention of 1787, would divide the citizen from 
himself; putting the noblest and warmest affections of his 
heart on the one side, and his highest allegiance on the 
other; so that, in case of a conflict between his State and 
the Federal Union, he must be inevitably lacerated and torn 
by the frightful collision. The fathers always admitted, 
that the noblest and warmest affections of the citizen 
would cluster around and cling to the State in which he 
was born, and to which his allegiance was, at first, exclu- 
sively due.* Did they mean, then, that in case of a con- 
flict between a State and the Union, and the secession of 
the former, the strongest affections of the citizen should 
be with the one, and his supreme allegiance with the 
other. I have too much respect for the wisdom and the 

* See The Fcdn'olist, Nos. xvii., xviii., xix., &«., &c. 



IS DAVIS A TRAITOR? 171 

goodness of the fathers^ to impute so horrible an intention 
to them: or that they designed, in any event, to set the 
citizen against himself, and rend him asunder by such a 
conflict between the elements of his nature. I believe, on 
the contrarv, that it is the intention of the fundamental law 
instituted by them, that the allegiance of the citizen 
should go with his affections ; and cling to the sovereign 
will of the State in which he lives, whether that leads 
him into or out of the Union. 

" It is not easy," said one of the most sagacious of the 
fathers, "to be wise for the present; much less for the 
future." How true ! and especially with reference to the 
institution of a new government ! Perhaps, if the fathers 
had only had a little more of this wisdom for the future, 
they would have more profoundly considered the great 
question of secession, and settled it beyond the possibility 
of dispute in the Constitution framed by them. If, for 
instance^ in the solemn compact between the States, they 
had expressly declared that any one of the sovereign parties 
to it might secede at pleasure; this would, it is believed, 
have produced the most happy result. The known and 
established fact, that the Union depended on the will of its 
members, would certainly tend to beget that mutual for- 
bearance, moderation, good-will, and sympathy, with- 
out which no federation of States is desirable. The wis- 
dom of the fathers might, in such case, have appeared far 
less conspicuous to some of the sons; and yet it might 
have saved the sons from the terrible war of words, and 
deeds, and blood, by which the ciYilization of the 19th 
century has been so horribly disgraced. It might have 
appeared a most " extraordinary spectacle " in theory ; and 
yet, in practice, it might have spared the world the infl- 
nitely more extraordinary spectacle of the war of 1861. 

I shall conclude my reflections on this argument, with 
the following judicious observations of Mr. Spence : " It 
would appear," says he, " the true policy of such a confed- 



172 IS DAVIS A TRAITOR? 

eration to remove all doubt^ and carry out clearly the 
principles of its origin, by openly declaring the right of 
secession. Had this been done from the first, there would 
l^robably have been no secession this day. The surest 
wa}' to end the desire for any object, is to give unlimited 
command of it. Secession has mainly occurred because it 
was denied. How beneficial the consequence, had it been 
an admitted right for the last forty years. In place of 
the despotic use of political power, in contempt of the 
feelings or interests of other portions of the country, 
w^hether of the slave-owners or monopolists — there would 
have been all along a tempering, moderating influence. 
Abolitionism, in all its extremes of virulence, has been 
permitted by the ^orth because the South was considered 
to be fast. It might writhe under it, but it must abide. 
But for this unfortunate belief, the intelligence of the 
North would have said, ^ If to gratify your passionate 
opinions, you indulge in such language as this, addressed 
to you fellow-citizens,they will separate from us; we will 
not have the Union destroyed, at your bidding and pleas- 
ure.' In like manner, when the manufacturers desired to 
increase protection to outrageous monoply, that intelli- 
gence of the North would have said to them, ' Our sister 
States shall not be driven from the Union in order to 
increase your profits.' The same rule will apply to exter- 
nal affairs. Texas would not have been annexed and be- 
slaved, no Mexican spoliations — no war of 1813 — no 
Ostend manifestoes need have defaced the history of the 
country. Throughout the range of political affairs there 
would have been present that influence so constantly 
absent — consideration for others. The sovereignty of the 
people is a depotism untempered by division or check. 
The denial of secession has invited it to act despotically — 
to do simply as it listed, regardless of those supposed to 
have no escape from endurance. The more the subject is 
examined, the more plainly it will appear that under an 



IS DAVIS A TILllTOK? 173 

admitted right of secession, there would never have grown 
up to dangerous magnitude those causes which now pro- 
duce. — and that in so terrible a form — the disruption of 
the Union. Without those causes, had the feelings and 
interests of others been fairly and temperately considered, 
the Union might have existed as firmly this day as at any 
former period of its history.^' * 

Arguinent from the opinion of Mr. Madison. 

In the Biograj^hical Memoir of Daniel Webster, prefixed 
to his works, Mr. Everett says : " The opinion entertained 
of this speech, (the speech of 1833), by the individual 
who, of all the people in America, was the best qualified 
to estimate its value may be seen from the following let- 
ter of Mr. Madison^ which has never before been pub- 
lished : 

IMbNTPELiER, March loth, 1833. 

My dear Sir: — I return my thanks for the copy of your late 
veiy powerful speech in the Senate of the United States. It crushes 
nullitication, and must hasten an abandonment of secession." 

Xow on what ground Mr. Madison could have based 
this opinion, at least in so far as it relates to secession, it 
is difficult to conceive. The fundamental premise of Mr. 
Webster, that " the Constitution is not a compact between 
sovereign States,'' and which is adopted as the title of his 
speech, was certainly not approved by Mr. Madison; for 
this premise, beside being direct opposition to the doc- 
trine of his whole life, is denied again in the very letter 
in which the above compliment is found. Mr. Webster 
has, indeed, very little to say against secession. His argu- 
ment is almost exclusively directed against " nullification,'^ 
the point then in debate between himself and Mr. Cal- 
houn. But the little he has to say against secession, is 
based on the idea that the Constitution is not a compact 
between sovereign States. Every argument, and every 

* American Union, p. 245-6. 



174 IS DAVIS A TRAITOR? 

assertion, levelled by him against secession (and they are 
but few in number), have no other than this false founda- 
tion. Hence, Mr. Madison could not have approved or 
applauded the argument of Mr. AA^ebster against secession, 
because he regarded his premise as sound ; for he was most 
profoundly convinced that it was false. On what ground, 
then^ could Mr. Madison have admired this argument? 

If the Constitution is a compact between sovereign 
States, as Mr. Madison always contended it was, then Mr. 
Mr. Webster admits, as we have seen, that the right of seces- 
sion follows. Thus, this right is conceded by Mr. Web- 
ster to flow from the premise which Mr. Madison always 
regarded as perfectly and unquestionably true. How, in 
the face of such a concession, Mr. Madison could have 
pronounced the opinion, that Mr. Webster's argument 
" must hasten the abandonment of secession," it is exceed- 
ingly difficult to conceive. The acknowledgement that 
the right of secession flows from a position too plain to 
be denied, would tend, as one would suppose, to hasten its 
adoption, rather than its abandonment. How then could 
Mr. Madison have said otherwise? 

The truth seems to be, that Mr. Madison was more 
solicitous to preserve the integrity of the Union, than the 
coherency of his own thoughts. He commends Lycur- 
gus for having sacrificed his life to secure the perpetuity 
of the institution he had taken so much pains to estab- 
lish.* For the same purpose, Mr. Madison sacrificed, not 
his life, but his logic. 

Is it not truly wonderful, that Mr. Madison who, on 
most subjects, sees so clearly and reasons so well, should 
fall into such inanities about secession? From his con- 
duct, as well as from his confession in the Federalist, \ it 
is evident, that he considered it a duty to veil the idea of 
this right, unless a proper occasion should arise for its 
assertion. But how imperfectly his arguments and opin- 

* Fcderalifit, No. xxxviii. f No. xliii. 



IS DAVIS A TRAITOR? 175 

ions perform this high office of concealment! He would, 
no doubt, have done better^ if better arguments against 
the right of secession could have been found or invented. 
As it is, the ineffable weakness of his views in opposition 
to the right of secession, shows how high and impregna- 
ble is the position which that right occupies. 

Mr. Madison greatly feared that Virginia and New York 
would, in their ordinances of ratification, expressly reserve 
the right to secede from the Union. This apprehension 
is most vividly set forth in his correspondence with Mr. 
Hamilton, in regard to the proposed conditional ratifica- 
tion of ISTew York ; from which it has been most confidently 
inferred, that neither Virginia nor New York did reserve 
such right. But what Mr. Madison desired, and what 
those States did, are two very distinct things. If we 
really wish to know what those States did, we should, 
it seems to me look at their recorded acts, rather than at 
what Mr. Madison desired them to do. The conditional 
ratification of Virginia was in direct opposition to the 
wishes of Mr. Madison. His wish, then^ however great 
his influence^ could not always control the action of his 
own State much less that of New York. 

Hamilton and Madison both desired a strong " national 
government." It was owing to their influence, that the 
first resolution of the Convention of '87 in favor of such a 
government, was passed. But, as we have seen;* although 
that resolution was afterward set aside by the Convention, 
Mr. Webster and Judge Story argue from its momentary 
existence, that the Convention of '87 actually established 
" a national government." In like manner, it is most 
confidently inferred from the wish of Mr. Madison, ex- 
pressed in his private correspondence, that neither Vir- 
ginia nor New York expressly reserved the right of 
secession in its ordinance of ratification ! Was Mr. Madi- 
son's wish the law of Virginia and of New York? And if 

* Chap. iv. 



KO IS DAVIS A TRAITOR? 

we want to know what those States actually did, must 
Mr. Madison's wish pass for everything, and their solemnly 
recorded acts for nothing ? 

Mr. Madison, as his correspondence sliows, was extremely 
anxious to prevent a conditional ratification of the Con- 
stitution in New York, as well as in Virginia. He even 
went so far as to advance the extraordinary proposition, 
that a conditional ratification would be " no ratification at 
all," and would " not make New York a member of the 
new Union." But after Virginia had ratified the Consti- 
tution on the express condition, that its powers should 
not be perverted to her injury or oppression, and had 
reserved the right to resume the delegated powers in case 
that condition should be violated; Mr. Madison retraced 
his steps, and freely admitted that Virginia was really in 
the Union ! He writes to Hamilton at once, and to Wash- 
ington, in order to do away with the impression, that a con- 
ditional ratification is "no ratification at all," and would 
not make any State a " member of the new Union." In 
regard to the conditional ratification of Virginia, he says : 
it contains " some plain and general tnitlis, that do not im- 
pair the validity of the act.'' 

Now from these words of Mr. Madison, it has been 
strenuously argued, that Virginia did not reserve the right 
to resume the powers she had delegated to the Federal 
Government ! It is true, as Mr. Madison said, that the 
plain truths referred to, did not impair the validity of the 
Virginia act of ratification. No one has ever doubted the 
validity of that act; or that it made Virginia a member of 
the new Union. Nor could any one ever dream of doubt- 
ing such a thing; "unless he had previously embraced Mr. 
Madison's most extraordinary proposition, that a condi- 
tional ratification is no ratification at all. But, while there 
is no question whatever as to the validity of the act, it is de- 
nied, that it was unconditionally and eternally binding on 
the State of Virginia, or that it could never be repealed by 



IS DAVIS A TRAITOR? 177 

the sovereign power by wliich it was enacted. Is it not 
wonderful, then, that Mr. Madison's words merely asserting 
the validity of the act in question, which no one has ever 
denied, should be so confidently quoted to prove, that the 
act must, in any event, stand forever^ unrepealed and 
unrepealable, by the power by which it was ordained ? 

Now what is " the plain and general truth " to which 
Mr. Madison refers as contained in the Virginia ordinance 
of ratification? It is the truth, that the powers delegated 
to the Federal Government may be resumed in case of 
their perversion; and that they may be resumed by the 
authority which delegated them. This was a plain truth 
then, and this is a plain truth now. It is indeed universally 
conceded. Xeither Story, nor Webster, nor Everett, nor 
Motley, has one S341able to say against this plain and 
incontestable truth. Hence, if Virginia delegated powers 
to the Federal Government; then Virginia, and A^irginia 
alone, had the right to resume those powers. This would 
have been the case, even if no express reservation of that 
right had been contained in her ordinance of ratification. 
But did Mr. Madison deny, that the powers in question 
were delegated by the State of Virginia? If so, then he 
denied a plain fact; and a fact, too, which he invariably 
and earnestly proclaimed from the beginning to the end 
of his career. Even if he denied that fact by implication, 
this would have proved only his inconsistency, and fur- 
nished another instance of the blinding influence of his 
extreme desire to veil the right of secession. 

Arr/ument from the opinion of Tlaniilfon. 

'' However gross a heres}^," says Hamilton, " it may be 
to maintain, that a party to a compact has a right to revoke 
that compact, the doctrine itself has had respectable advo- 
cates." * This, it should be observed, is said in relation to 
the old Articles of Confederation, which are universally 

* Federalist, No. xxii. 



178 IS DAVIS A TRAITOR r 

admitted to have formed a compact between sovereign 
States. It was^ then^ the opinion of Hamilton^ that a 
State had no right to secede from a confederacy of States, 
or from the compact by which they are united. If he 
means to assert, that it has no natural or moral right to 
secede at pleasure from a compact, I have at present nO' 
controversy with him. But if he means that it has no 
legal, or constitutional right to do so, then his own opin- 
ion is " a gross heresy," which has but few respectable 
advocates at the present day. 

For, as we have already seen, both Story and "Webster 
concede, that the constitutional right of secession belongs 
to States, which are united by a compact, ^ow, after 
such a concession, it is not too late to quote the opinion of 
Hamilton to prove, that the very inference conceded is " a 
gross heresy?" Yet this is done by Mr. Justice Story. 
In one paragraph, he admits that if the Constitution is a 
compact between the States, then each State may secede 
from that compact at pleasure; and yet, in tlie very next 
paragraph, he proves out of the FederalUt, that * " even 
under the confederation," which is admitted to have been 
founded on a compact between the States, f "it was 
deemed a gross heresy to maintain, that a party to a com- 
pact has a right to revoke that compact •"% or to set it aside 
at pleasure. Thus the very inference which he admits 
in one breath, he pronounces a gross heresy in the next, 
and proves it to be such by the authority of Hamilton ! 

The doctrine which both Story and "Webster have been 
constrained to admit, is no doubt entitled to more consid- 
eration than the naked and unsupported opinion of Ham- 
ilton. This opinion seems, indeed, to have grown out of 
his deep and intense desire to consolidate the Fnion, rather 
than form his legal studies and knowledge. He was 
only thirty years of age when the Federalist was written; 
and his life, with the exception of four years, had been 

•Vol. i., p. 288. t^o- x^ii. tVol. i. p. 290. 



IS DAVIS A TRAITOR? 179 

passed in the active duties of the camp, or in his college 
studies. Hence, however great his powers, his knowledge 
of jurisprudence, and of the opinions of the learned, must 
have been exceedingly limited, when compared with those 
who have devoted their lives to this study. If, then, 
Story and Webster are constrained to admit the right of 
a State to secede from a confederacy bound by a mutual 
compact; this may surely be taken as an indication of 
the real teachings of the law on the point in question, and 
regarded as a higher authority, than the bare opinion of 
Hamilton. This would be so, even if no progress had 
been made in the science of international law since the 
tiuie of Hamilton; but, in fact, there has been great pro- 
gress in this science during the present century; espec- 
ially in regard to the doctrine of compacts between States. 
Enlightened by the principles of that doctrine, Mr. Jus- 
tice Story could not deny the right of one of the parties 
to secede from such " a compact." Hence, he attempted 
the more than herculean labor of recasting the whole 
political history of his country, and moulding it into con- 
formity with his wonderful hypothesis, that the Constitu- 
tion of the United States is not a compact between States 
at all. He first asserts truly, that a State may secede 
from such a compact, and then proves out of Hamilton 
that his own assertion is " a gross heresy !" " That gross 
heresy," says Hamilton, "has had respectable advocates." 
Mr. Justice Story himself is one of those advocates. Nor 
is this all. The Convention of 1787 advocated the same 
heresy; and, moreover, embodied it in their legislation. 
Hamilton insisted in that Convention, that the States had 
no right to revoke the existing compact between them, 
or to secede from it in order to form another, without 
the consent of each and every State in the Union. But 
his opinion was overruled by the Convention; and the 
States did, in pursuance of the decision of the Convention, 
withdraw from the existing compact to form a new one. 



18<) IS DAVIS A TRAITOR.-' 

Mr. Hamilton may liave been right, and the States may 
have been wrong; but, however this may be, their decis- 
ion establislied the supreme law of the land. The advo- 
cates of the right of some of the parties to a compact 
between States to revoke that compact, or to withdraw 
from it, may not have been as respectable as the opponents 
of this doctrine; it is certain that they prevailed in the 
Convention of 1T87, and embodied their own views in the 
legislation of the United States. That legislation should 
be our guide, not the defeated opinion of Mr. Hamilton. 
Or, at least if we happen to believe that legislation to 
have been right, and if in conformity with the opinion of 
Mr. Justice Story, we happen also to believe that a State 
may secede from a compact between States; may we 
not humbly hope, that this will not be deemed so ^^ gross a 
heresy " as to be treated as treason and rebellion ? 

Argument from flic renj Idea of a Nation. 

The " very idea of a nation," it is said, is utterly incon- 
sistent with the right of secession. But what is a nation? 
'' It is a body politic," we are told, " independent of all 
others, and indissoluhhj one. That is, indissoluble at the 
mere option of its constituent parts.''* Thus, the whole 
question is begged, and the whole controversy completely 
settled, by the definition of " the very idea of a nation." 

How great the triumphs of such logic, and how wonder- 
ful the displays of such genius ! Setting out from " the 
very idea of a nation" in the abstract, and, absolutely 
unembarrassed by any other idea or knowledge in the wide 
world, this argument just reaches, at one simple bound, 
the conclusion, that "as the Abberville district cannot 
secede from South Carolina; so South Carolina cannot 
secede from the United States;" a profound view and 
striking illustration which the President from Illinois bor- 
rowed from the Preacher of Princeton. f- 

* Rer. Dr. Hodp^e on the State of the Country, p. 24. 

t Enlightened by the profound view of his reverend guide, Mr. 



IS DAVIS A TRAITOR? . 181 

Argument from the purcliase of Louisiana, Florida, &c. 

It is, we are told, absurd to suppose that the people 
would have expended so much money for the purchase of 
Louisiana^ Texas, and Florida, if those States could secede 
from the Union, f It is not at all probable, that those 
territories were purchased under the belief that they 
would desire to secede, whether they possessed the right 
to do so or not. And besides, it might be easily shown, 
that long being before those States did secede, the govern- 
ment of the United States had realized far more from them 
than she gave for them; which was only a few millions of 
dollars. Hence, even on the theory and the practice of 
secession, the purchase was far from being absurd. On 
the contrary, it was a highly profitable bargain; and in 
order to justify it, or to show that it was reasonable, it is 
not at all necessary to suppose that the sovereign peoples 

Lincoln with a naive originality all his own, might well have 
asked, what is the difference between a county and a State? Is 
not a county a little State, and a State a big county ? One strike- 
ing difference must have occurred tO' him in the course of his read- 
iiLg; the difference, namely, that a State is spelt with a large S, 
and a county with a small c. He must also have observed that a 
State is sometimes called " Sovereign." But whether it is called 
Sovereign because it is spelt with a large S, or spelt with a large S 
because it is called Sovereign, is one of the nice questions in the 
science of government, which he does not seem to have ^'ery fully 
considered or positively decided. He had evidently discovered, for 
he tells us so himself, that a State is usually larger than a coun- 
ty in the extent of its territory; a discovery which, perhaps, led io 
the profound and original reflection, that the United States have 
been, and must continue to be, one State or Nation, because their 
territory is one. It is to be hoped, indeed, that these soverign 
States or counties, as the case may be, shall continue to be united, 
and that order, tranquility, and happiness shall once m-ore bless 
their Union. But if so, must not something beside the one terri- 
tory help to produce the happy result? Have not simple confed- 
erations existed on the same territories? Nay, have not some 
twenty distinct nationalities long existed on the territory of Eu- 
rope? We may, then, hardly trust the reflection, however pro- 
found, that one territory is in itself a sufficiently active and power- 
ful cause to produce one very big State, or county, covering a 
whole continent. f Hodge on the State of the Coimtrj^, p. 28. 



182 . IS DAVIS A TRAITOR? 

of tliose states, with their Constitutional riglits and priv- 
ileges, were also purchased with the pitiful sum paid for 
their annexation to the United States. They were admit- 
ted as sovereign States, with all the rights of the original 
parties to the compact; and as such were entitled to the 
full benefit of all its provisions. 

Indeed, this ad captandum argument appears exceed- 
ingly weak, if not absolutely ridiculous. Can any purchases 
made by any parties to a compact, alter the terms of that 
compact, or make it more binding than it was before ? If a 
State retained its sovereignty in the Union, and conse- 
quentl}", had a right to resume the powers which it had 
delegated to the Federal Government; this right was not 
affected by the purchase of Louisiana, or Florida. To pur- 
chase those Territories is one thing, and to sell the sover- 
eignty of each and every State in the original Union is quite 
another. If any State should withdraw from the original 
compact, and thereby dissolve the Union as to itself; then 
the purchase of such Territories should be considered in 
the final settlement between the parties. But to argue, 
that they were indissolubly and eternally bound together 
because they made such purchases, seems, to say the least, 
a little ridiculous. 

Argument from Analogy. 

How wonderful soever it may seem, Mr. Justice Story 
argues from analogy as follows : As an individual has no 
right to secede from a State government ; so a State has no 
right to secede from the government of the Union. Now 
this argument proceeds on the supposition, that a sover- 
eign State bears the same relation to the Federal Govern- 
ment, which it concurred with other States in creating, 
that a county, nay, that an individual, bears to a State. 
Mr. Justice Story was far too learned to endorse so mon- 
strous a heresy explicitly; but it is, nevertheless, tacitly 
assumed as the basis of his argument from analogy against 



IS DAVIS A TRAITOR? 183 

the right of secession. His whole theory of the Constitu- 
tion points, it is true^ to the conclusion so openly avowed 
by the Eev. Dr. Hodge and Mr. Lincoln, which views a 
State as merely a county of one great consolidated nation; 
but he never reached this conclusion himself^ except sur- 
reptitiously, as in the above argument from analogy. 

But even admitting this false conclusion as a postulate, 
the argument of Judge Story is by no means as conclusive 
as it appears to his own mind. For the right of an indi- 
vidual to secede from a State government, is daily exer- 
cised by some one or other in every part of the world. 
An individual cannot, it is true, remain under the govern- 
ment of a State, continuing to enjoy its protection, and, at 
the same time, refuse to obey its mandates. But this were 
nullification, not secession. The only way in which an indi- 
vidual can secede from a State, is to withdraw from the 
limits of its dominion; and this right is daily exercised in 
every part of the civilized world, without being called in 
question by any one. The Puritans themselves, by whom 
Massachusetts was originally settled, withdrew from the 
government of Great Britain; and quietly marched off, 
undisturbed by his Majesty, first into Holland, and then 
into the New World. Now suppose this right had been 
denied to them ? Suppose fire and sword had been used to 
compel the Pilgrim Fathers, those meek and holy apostles 
of freedom, to remain under the government they detested ; 
would they not have made the world ring with their out- 
cries at the perpetuation of such injustice and tyranny? 
But they were allowed to withdraw to the New World; 
and there set up the government of their choice. The 
colony of Massachusetts Bay, then, owed its existence to 
the acknowledged right of individuals to secede from the 
government of a State, and enjoy one whose " powers are 
derived from the consent of the governed." 

But a State, united in a confederacy with other States, 
can secede from the orovernmcnt of the union, without the 



184 IS DAVIS A TRAITOR? 

necessity of changing its location. This makes a differ- 
ence in the exercise of the riglit, though not in the right 
itself. It is indeed quite impossible for a whole State, or 
people, to change its location, or abandon their homes. 
If the Southern States could have done so, the exodus 
would, no doubt, have been most gratifying to some of the 
descendants of the Pilgrim Fathers of Xew England. 
This is evident from the eloquent address of Mr. Henry 
"Ward Beecher to the excited thousands of Exeter Hall in 
1863. In reply to the question, " Why not let the South 
go?^' he exclaimed, " that the South would go ! but then 
they must leave us their lands." If they had only left their 
lands and homes, and plunged into the gulf of Mexico; 
this great enemy of secession would have hailed the event 
as one most auspicious for the spread, the aggrandizement, 
and the glory of the race to which he belongs. It would 
have appeared to him, no doubt, like the herd of swine 
which, being possessed of devils, madly rushed into the 
sea, and disappeared from the world. But when they 
seceded, without proposing to leave their lands behind; 
this made all the difference imaginable; being an outrage- 
ous violation of one of the great fundamental articles of 
the Puritan creed, which, in early times, was expressly 
set forth by the Colony of Connecticut in solemn conclave 
assembled. It was then and there decided, that " the 
earth is the inheritance of the saints of the Lord;'' the 
saints having, in their declaration, as is believed, an eye 
to the beautiful locations and lands of the Indians. It is 
certain, if we may judge from the speech of Mr. Beecher 
in Exeter Hall, that some of the most influential of the 
saints had a longing and passionate eye for the beautiful 
lands of the sunny South. 

The truth is, that every constitutional compact, whether 
between the people of a single State, or between sovereign 
States themselves, forms a voluntary association; the one 
between individuals, and the other between sovereign 



IS DAVIS A TRAITOR? 185 

States. Hence^ if the right of secession be denied in 
either case^ and the denial enforced by the sword of coer- 
cion; the nature of the polity is changed, and freedom is at 
an end. It is no longer a government hy consent, hut a 
government of force. Conquest is substituted for compact, 
and the dream of liherty is over. 

N'o man has contributed more to this dire result, than 
Mr. Justice Story who not only exhausted all the stores 
of his own erudition, and exerted all the powers of his own 
mind, to prove that the Constitution was not a compact 
between the States, but also enlisted the great powers 
and eloquence of Mr. Webster in the advocacy of the 
same monstrous heresy. This concealed the great funda- 
mental principle of the Constitution, and kept out of view 
the all-important truth laid down by Mr. Mill^ that the 
very first condition necessary to a desirable federation of 
States, " is a sufficient amount of ' sympathy among its 
populations." Nor is this all. His theory of the Consti- 
tution fell in with the corrupt and the corrupting tendency 
of the age; the tendency, namely to deny the sacred obli- 
gation of " The Co:\ipact of the Constitution." For 
how can any compact be held sacred, which is held not to be 
a compact at all, but only the emanation, or creature, of the 
sovereign will by which its restraints are abhorred? May 
not the creator do what he pleases with his own? May 
not the one great nation, the one sovereign people of 
America, take some little liberties with the work of its 
hands, instead of being scrupulously bound by it as a com- 
pact between the States? Nay, may it not take some 
little liberties with the rights of the States themselves; 
since the States, as well as the Constitution, were created 
by its own sovereign will and pleasure? May it not, in 
short, treat the States as counties ? 

It is possible^ indeed, that no learning, or logic, or elo- 
quence could have resisted this terrible tendency, or 
stemmed the mighty torrent of corruption it continually fed 

13 



18G IS DAVIS A TRAITOR? 

and augmented. But this is no reason wl\v learning, and 
logic, and eloquence should have favored its progress. 
That progress was slow, but sure. All power slowly grav- 
itated toward the federal centre, and was there consolida- 
ted by false theories of the Constitution. In the towering 
audacity of tliat central power (assuming to itself all the 
glories of the one grand nation, it was gradually for- 
gotten that honor, and justice in the observance of the 
original compact, no longer regarded as a compact), and 
mutual sympathy among the peoples, it was intended to 
unite, are the indispensable conditions of a free and happy 
Federation of States ; and for these sacred ties of " the 
glorious Union," were substituted the sacrilegious bonds 
of fraud, force, and ferocity. It is no wonder, then, that 
secession should, in the end, have been regarded as the 
greatest of all crimes; since the Union was then held 
together, not by the mutual sympathy or the conciliated 
interests of its peoples, but by " the cohesive power of 
public plunder." Mr. Justice Story, be it said to his eter- 
nal shame, took the lead in constructing the theory of that 
tremendous scheme of despotic power, and the politicians 
of Massachusetts in reducing it to practice. John C. Cal- 
houn, on the contrary, lived and died in opposing all the 
powers of Ids gigantic intellect to its overwhelming tor- 
rents, both in theory and in practice. 



CHAPTER XYIII. 

Was Secession Treason? 

Till-: doctrine of secession consists of two propositions: 
the first asserts that the Constitution was a compact 
between the States; and the second that a State, or one 
of the parties, had a right to secede from such a compact. 
The second proposition is simply an inference from the 
first. Xow, if secession is at all tainted with treason, the 
crime must lurk in the one or the other of these proposi- 
tions. 

Is it treasonable, then, to assert that the Constitution 
was a compact between the States, or the members of the 
Union? Xo one, it is presumed, will venture on so bold 
an assertion; for, as we have seen, this was the doctrine 
of the fathers of the Constitution themselves. It has been 
shown, by an articulate reference to their writing, that it 
was clearly and unequivocally the doctrine of Madison, 
and Morris, and Hamilton, as well as of other celebrated 
architects of the Constitution. Who, then, will pronounce 
it treason, or treasonable? The Federalist, in submitting 
the Constitution to the people and in pleading the cause 
of its adoption, did not hesitate to say, as a fact then per- 
fectly well and universally known, that the Constitution 
was " the compact " * to which " the States as distinct and 
independent sovereigns " f were the parties. Did the Fed- 
eralist espouse treasonable sentiments? Both Hamilton 
and Madison, tlie two great architects of the Constitution, 

* Xo. xxix. t ^o. xl. and No. Ixxxv. 
[187] 



188 IS DAVIS A TRAITOR? 

mosr earnestly and eloquently recommended it to the peo- 
ple in the Federalist and elsewhere as the compact 

BETT\'ZZX THIRTEEN' SOVEREIGX AXD IXDEPEXDEXT StaTES. 

Is that doctrine treason, then? Is there the least sign, or 
symptom, or shadow of treason connected with that senti- 
ment of the fathers ? Are those " untrue to their coun- 
try," who say, with all the most illustrious fathers of the 
ITnion, that the Constitution was a compact between 
the States? On the contrary, are not those untrue to 
themselves, to their countn;. and to their God. who. in the 
midst of so many unquestionable proofs on all sides around 
them, can assert that the Constitution is not a compact? 
Is it " the dialect of treason *" to say that " the States 
acceded to the Constitution?"' In other words, is the 
language of Wilson, and Morris, and Randolph, and Frank- 
lin, and Jefferson, and Washington, to be denounced as 
*'•' the dialect of treason ?'* Is it treason to understand the 
Constitution as it was understood by the great patriots 
and statesmen from whose wisdom it proceeded? Is it 
treason to adhere to their ^iews, sentiments, and lan- 
guage? Or is it loyalty to depart from their views, senti- 
ments, and language: denouncing them as the inventions 
of modem rebels, and blood-thirsty traitors ? Xo one can, 
or will, venture to answer this question in the affirmative. 
Ignorance and passion may have done so in times i)ast. 
But who can read the history of his country, who can 
behold the great fact, that the Coxstitutiox is a com- 
pact BETWEEN the StaTES BLAZIXG ALL OVER ITS AMPLE 

pages: nay, written there by the fathers of the Eepublic 
themselves; and then deliberately pronounce it a treason- 
able sentiment ? Can any man do so ? Has any man suffi- 
cient strength of continence for such an achievement? If 
so, then indeed must his front of brass, and his heart of 
iron, forever remain an incomprehensible myster}' to all 
reasonable men. Xay, if any party or majority, aided by 
the united strength of all their countenances, should pro- 



IS DAVIS A TRAITOR? 189 

nounce sueli a fact treasonable; this would only prove that 
they must have been ignorant of the history of their coun- 
try. But, whether from ignorance, or from malice, or 
from both, shall it ever be the lot of American citizens to 
live in a land in which truth shall be treason, and history 
rebellion ? Shall it ever come to this — ye blessed spirits 
of departed heroes and patriots I — shall it ever come to 
this, that a dungeon and a halter awaits the man who may 
have the most devoutly cherished thy sentiments, and 
the most implicitly trod in thy footsteps? 

Xo I it will be admitted, that the doctrine of the fathers 
is not treason. "Wliether that doctrine be true or false, it 
will be admitted, that it is entitled to the respect of all 
who respect the founders of the Republic. Even if the 
fathers did not understand their own work, — a thought 
which is itself almost akin to treason — it is certainly not 
an unpardonable heresy to agree with them, or to adopt 
their ^iew of the Constitution of the United States. 

Will it be said. then, that it is treasonable to assert, that 
a State may secede from a compact between States? If 
so, then Story and Webster were both traitors : for. as we 
have over and over again seen, these most admired 
expounders of the Constitution expressly concede, that a 
State may secede at pleasure from such a compact. But, 
here again, even if Story and Webster were mistaken in 
this principle of law : it is surely absurd to denounce such 
an error as treason or rebellion. 

Xor it this all. Precisely the same inference is drawn 
by another great expounder of the Constitution, namely, 
by William "Rawle. of Philadelphia. The legal opinion of 
Mr. Rawle is entitled to great respect. Mr. Buchanan, late 
President of the United States, speaks of him as follows : 
" The right of secession found advocates afterwards in 
men of distinguished abilities and unquestioned patriotism. 
In 1825 it was maintained by Mr. William Rawle. of Phil- 
adelphia, an eminent and universally respected lawyer, in 



190 IS DAVIS A TRAITOR? 

the 23d [32d] chapter of his ' View of the Constitution of 
the United States/ In speaking of him his biographer 
says that ' in 1791 he was appointed District Attorney of 
the United States ;' and ^ the situation of Attorney C4eneral 
was more than once tendered to him by Washington, but 
as often declined/ for domestic reasons."* Xow Mr. Rawle 
wrote his '' View/' not as a partizan, but simply as a jurist 
in the calm and impartial investigation of truth; having 
no conceivable motive to reject the plain teachings of his- 
tory and law. Indeed^ as we have seen, he agreed with 
Story and AYebster in regard to the principle of law, and 
differed from them only in regard to facts. Hence^ if they 
had not denied that the Constitution was made by the 
States^ they would have been compelled^ like Air. Eawle 
to admit the right of secession. 

" The Union is an association of republics,'' says Mr. 

Rawle Again, "we have associated as republics 

But the mere compact, witliout the means to enforce it, 
would be of little value." \ Having announced the truth, 
that the Constitution is a compact between republics, he 
drew the inference from this which is admitted to follow 
by Story and '\Vel)ster. That is, he inferred the right of 
secession ; just as if there could be no question on so plain a 
point of law. '' It depends on the State itself," said he, 
" to retain or abolish the principle of representation, be- 
cause IT DErEXDS ox THE >S'TATE ITSELF WHETHER IT COX- 
TIXUES A MEMBER OF THE UXIOX." Again, he says, ^' THE 

States iniay withdraw fro:\[ the Uxiox, but Avhile they 
continue, they must retain the character of republics," as 
well as comply with every stipulation of the constitutional 

compact " The secession of a State from the Union," 

he continues, " depends on the will of the people. The 
Constitution Of the United States is to a certain extent, 
incorporated with the Constitutions of the several States 

* Buchanan's Administration, p. 88. 

t Rawle on the Constitution, chap, xxxii. 



IS DAVIS A TlfAITOR? 191 

by the act of the peojDle." . . . . " Nothing is more certain 
than that the act [secession] should be deliberatCj clear, and 
unequivocal. The perspicuit}' and solemnity of the origi- 
nal obligation require correspondent qualities in its disso- 
lution/' 

Xow this is the language of a man, of an eminent 
jurist, who was the contemporary and friend of Wash- 
ington. He lived before the rise of those new ideas, and 
dazzling images of power, which afterward obscured 
" the perspicuity and solemnity " of the act by which each 
State had acceded to the compact of the Constitution. 
AYas not this man of " distinguished abilities and unques- 
tioned patriotism," then, right both in regard to his premise 
and to his conclusion? He took, as we have seen, pre- 
cisely the same view of the Constitution as that taken by 
all his great contemporaries, the fathers of the Constitu- 
tion themselves; and he only inferred from this view the 
right of secession, which, according to Story and Web- 
ster, is a legitimate inference? But even if he was not 
right, if Eawle, and Stor}^, and Webster were all in error 
as to the justness of this inference; still were it not the 
very height of absurdity, the very climax of intolerance, 
the very quintessence of malice and persecuting bigotry 
to pronounce such an opinion treason ? 

If, then, any poor benighted son of tlie South was 
really guilty of treason on account of secession: this 
must have been either because he understood the Consti- 
tution no better than those who made it, or because he 
knew tlie law of compacts no better than the most cele- 
brated jurists of America? On which horn of this di- 
lemma shall he be hanged? Shall he be tried and found 
guilty of treason, for not understanding the Constitution 
better than Morris, and Madison, and Hamilton, and 
Washington; or for not knowing the law of compacts 
better than Rawle, and Story, and Webster? If found 
guilty on either ground, it is to be hoped that his counsel 



192 IS DAVIS A TRAITOR? 

will move an arrest of judgment, that such distressing 
ignorance was his misfortune, not his fault. 

Massachusetts and the Hartford Convention. 

The facts, proofs, and authorities going to establish the 
right of secession are, indeed, so redundant, so overflow- 
ing, nay, so absolutely overwhelming, that many of them 
have been necessarily omitted in the foregoing argument. 
One of them is, however, quite too important and striking 
to be entirely neglected. Hence it shall be introduced in 
the present place. 

The Virginia Eesolutions of '98 were submitted, as the 
reader is doubtless aware, to the Legislatures of every 
State in the Union. These Eesolutions contained, as we 
have repeatedly seen, the very doctrine so eloquently 
denounced by Mr. Webster in 1833; the doctrine, namely, 
that the Constitution is a compact between the States of 
the Union. This doctrine was, in fact, made the ground 
work of that celebrated manifesto. Now it is a remark- 
able fact, that not one of the Legislatures, who replied to 
the Eesolutions of '98 called this great fundamental position 
in question. No one at that early day, so near the origin 
of the Constitution, seems to have dreamed that such 
a doctrine was tainted with heresy, much less with trea- 
son. Not a single Legislature seems to have imagined, 
for one moment, that the United States, or the States 
United, did not form a Confederacy, or that its Constitu- 
tion was not a compact. In the answer of the Legislature of 
Massachusetts, Mr. Story's and Mr. Webster's own State, 
by far the most able and elaborate of all the replies to the 
Eesolutions in question, there is not one syllable or sign 
of opposition to the doctrine, that the States formed a 
Confederacy, or that their Constitution was a compact 
between them. On the contrary, Massachusetts, then and 
there, in her great manifesto in opposition to that of Vir- 
ginia, expressly recognized the truth of that doctrine. 



IS DAVIS A TRAITOR? 193 

That is, in conformity with the uniform and universal 
usage of the day, she spoke of the desire of Massachu- 
setts to " CO-OPERATE WITH ITS CONFEDERATE STATES f * 

and also of " that sole:\[x compact, which is declared 
TO be the supreme law of the land." f Massachusetts 
was not, then, one of tliat mighty cloud of witnesses, com- 
posed alike of " friends and foes," which Mr. Webster, with 
his great dark eye ^^ in a fine frenzy rolling," fancied that 
he saw in the air, all uniting in the solemn declaration, as 
with the voice of doom, that compact is no more, that 
Confederacy has fallen, and that henceforth the sov- 
ereign WILL OF THE ONE GRAND NATION, THE PEOPLE OF 

America, shall reign forever and ever ! On the con- 
trary, poor simple-hearted Massachusetts of 1790, imagined, 
that a compact, that even a " solemn compact," not only 
might he, but actually was, " the supreme law of the 
land," and that it was under or by virtue of that solemn 
compact that she had, only eleven years before, " confed- 
erated " with her sister States ! 

T^Tor is this all. Massachusetts continued, for some 
years longer, true to the first great article in the creed of 
the fathers. Indeed circumstances greatly favored her 
fidelity, and deepened the fervor of her faith. The acqui- 
sition of Louisiana, which added a vast empire to the 
Southern end of the Union, produced a profound dissatis- 
faction throughout Massachusetts and the other IN'ew 
England States ; causing ''' tlie glorious Union " to wane, 
and the sovereignty of the States to wax, mightily in 
their eyes. "At an early period after the formation of 
the Constitution," as Mr. Buchanan truly says, "many 
influential individuals of New England became dissatisfied 
with the union between the Northern and Southern States, 
and 7ri filled to dissolve it." "This design," according 
to Mr. John Quincy Adams, " had been formed in the win- 
ter of 1803-4, immediately after and in consequence of 

"Elliot's Debates, vol. iv., p. 563. f Ibid, p. 560. 



194 IS DAVIS A TRAITOR? 

the acquisition of Louisiana.*' * The embargo and non- 
intercoiirse laws^ wliich were designed to bring England 
to terms without the dire necessity of wai-, augmented tlie 
already great dissatisfaction of Xew England;, because 
they affected her commercial interests, and thereby 
touched her in l)y the most sensitive portion of her 
frame. She cried aloud for war! She cried, down witli 
all your embargo and non-intercourse laws, and up with 
the flag of armed resistance ! Impatient at the slow 
movements of the South, she taunted her with cowardice, 
and courteously as well as elegantly declared, that the 
South could not be " kicked into a war with England.*' 
But she was mistaken; she did not fully comprehend 
the South ; the South is, perhaps, too easily ^^ kicked 
into a war." It is certain, that the South in the persons 
of her two young, ardent, enthusiastic, and chivalrous repre- 
sentatives, Henry Clay, of Kentucky, and John C. Cal- 
houn, of South Carolina, responded to the loud, vehement 
war-cry of Xew England. Their eloquence shook the 
nation. The spirit of armed resistance was roused : and 
the war with Great Britain proclaimed. But, alas! this 
did not help the commerce of Xew England. The remedy 
proved worse than the evil. Her ravenous pockets, in- 
stead of being filled with gold and satisfied, became still 
more and more alive to the dreadful state of things, and, 
thereupon, she endeavored to " kick the South '' out of the 
war with Great Britain. In this, the dark hour of her 
agony and distress, she suddenly discovered that war is, 
at best, a most unholy and unchristian thing: not to be 
entered on lightly, or witlioiit cnnniinfj the cost. She also 
discovered, that, after all, the number of her seaman, im- 
pressed by the tyranny of Great Britain, had been greatly 
exaggerated (by whom?) ; and that consequently the 
cause of quarrel was far too suiall to justify so unholy and 
so unchristian, that is to say, .«r) vii pro fit able a war. 
* Buchanan's Administration, p. SG. 



IS DAVIS A TRAITOR? 195 

In the (lark hour of her distress^ the glorious rights of 
the States came out, and showered down their radiance on 
all N"ew England, like the stars at night. The sovereignty 
of her own beloved Massachusetts, indeed, then totally 
eclipsed the full moon of the once ^'glorious Union;" just 
as completely as if Massachusetts had been " the whole 
earth." I speak from the record; from that secret, silent 
record of the Hartford Convention, in which all the pro- 
found dissatisfaction of Xew England with the Union cul- 
minated; and into which her sons, in spite of all their 
prying curiosity, have no desire whatever to look. Mr. 
Webster, for example, in his great debate with Mr. Hayne, 
of South Carolina, in 1830, solemnly declared that he had 
never read the proceedings of that famous Convention. 
'No wonder ! 

'• Where ignorance is bliss, 'tis folly to be wise," 
" Events may prove," says the Journal of the Hartford 
Convention, January 4th, 1815, "that the causes of our 
calamities are deep and permanent. They may be found 
to proceed, not merely from blindness of prejudice, pride 
of opinion, violence of party spirit, or the confusion of the 
times; hut they may he traced to imiilacahle combinations 
of individuals, or of States, to monopolize power and 
office, and to trample ivitliout remorse upon the rights and 
interests of the commercial sections of the Union/' * 
Xow, if we only substitute the term agriculturcd for com^ 
mercial in the above passage: how admirably w411 it express 
the comj^laint of the South, which, for long years of endur- 
ance, was treated with such imperial scorn and implacable 
contempt by the States of Xew England ! 

" Whenever it shall appear," continues the Journal, " that 
these causes are radical and permanent, a separation by 
ecjuitahle arrangement, tcill be preferable to AN" alliaxce by 

CONSTRAINT, AMONG NO:\rTNAL FRIENDS, BUT REAL ENEMIES, 
* Page 5. 



196 IS DAVIS A TRAITOR? 

INFLAMED BY IMUTUAL HATRED AXD JEALOUSIES, AND INVI- 
TING, BY INTESTINE DIVISIONS, CONTEMPT AND AGGRESSIONS 

FROM ABROAD." * Precisely thus, and not otherwise, 
reasoned the South in 1861 ; and asked for " a separation by 
equitable arrangement," instead of " an alliance by con- 
trast " with " nominal friends, but real enemies, inflamed 
by mutual hatred and jealousies." But the great boon 
was contemptuously refused; because the sentiments of 
New England had undergone a radical and total revolu- 
tion. The reason is, that those were the sentiments of 
New England in the minority, and these the sentiments 
of New England in the majority. Holy indeed was her 
horror of " an alliance by constraint," when she was the 
13arty in danger of being constrained; but no sooner had 
she acquired the power to constrain, than such an alliance 
appeared altogether pure and just in her unselfish eyes ! 

The Journal of this Convention has much to say about 
" the constitutional compact ;" and hence, if it had only 
been read by Mr. Webster, he must have been familiar 
with this mode of expression, wliich so seriously offended 
him in the resolutions of Mr. Calhoun in 1833, and called 
forth his fine burst of eloquence in defence of the rights of 
that " noun substantive," the Constitution. He must have 
discovered also, that in the opinion of Massachusetts in 
1815, the rights of sovereign States are at least as important 
as those of any noun substantive in the language. For, in 
the words of that Convention, the power of conscription is 
" not delegated to Congress by the Constiution, and the 
exercise of it would not he less dangerous to their liberties, 

THAN hostile TO THE SOVEREIGNTY OF THE STATES."t 

"It must be the duty of the State to watch over 

the rights reserved, as of the United States to exercise the 
powers which were delegated.X 

The Hartford Convention, towering in the strength of 
its State rights sentiments, continues thus : " That acts 

* Pap:e 5. t Page 8. t Page 7. 



IS DAVIS A TRAITOK? 197 

of Congress in violation of the Constitution are absolutely 
void, is an undeniable position. It does not, however, 
consist with the respect from a Coxfederate State 
towards the General Government, to fly to open resistance 
upon every infraction of the Constitution. The mode and 
the energy of the opposition should always conform to 
the nature of the violation, the intention of the authors, 
the extent of the evil inflicted, the determination mani- 
fested to persist in it^ and the danger of delay. But in 
cases of deliberate, dangerous^ and palpable infractions 
of the Constitution, affecting the sovereignty of the 
State, and liberties of the people ; it is not only the light, 
hut the duty, of such State to interpose its authority for 
their protection, in the manner test calculated to secure 
that end. When emergencies occur which are either be- 
yond the reach of judicial tribunals, or too pressing to 
admit of delay incident to their forms, States, which 
have no common umpire, must be their own judges, 

AND EXECUTE THEIR OWN DECISIONS." * ^OW, if pOSSible, 

this comes more directly and plainly to the point, than the 
Resolutions of '98. It not only sets forth the great doc- 
trine, it sometimes employs the very language of those 
Resolutions. 

Having finished its work, and appointed commissioners 
to lay the complaints of New England before the Govern- 
ment of the United States, the Convention resolved, that 
"if these should fail," it would be the duty of the New 
England States to hold another Convention at Boston, on 
the 3d Thursday of June, with such powers and instruc- 
tions as so momentous a crisis may require, f No such 
Convention ever assembled at Boston, or elsewhere; for, 
in the meantime, the great trouble had come to an end. 
How, or by what means? Mr. Webster, though he con- 
fesses ignorance as to the proceedings of the Hartford 
Convention, is nevertheless perfectly ready with an an- 

'■' Pages 10-11. t Page 21. 



108 IS DAVIS A TRAITOR? 

swer to tins question. In his senatorial debate with Mr. 
Hayne, in 1830, he tells the world, that Massachusetts 
gave up all opposition as soon as the Supreme Court of the 
United States decided the laws of which she complained 
to be constitutional; thus showing her loyalty under the 
most severe and trying circumstances ! This was, perhaps, 
a thrust at South Carolina; who, as Mr. "Webster sup- 
posed, stood far apart from Massachusetts in the heresy, 
that, in great and trying emergencies, " the States, who 
have no common umpire, are to be their own judges, and 
to execute their own decisions.'' How little he knew the 
history of his own State ! Hence, he could fondly imagine, 
that Massachusetts had always been willing and ready to 
bow to the Supreme Court as the common umpire between 
the States, and proudly pointed to her conduct in 1815, 
bending and groaning under the burden of the laws, and 
yet loyally submitting to the high tribunal by whom it was 
fastened uj)on her shoulders ! The truth is, as we have 
just seen, that Massachusetts had resolved to take that 
very emergency into her own hands; to he lier own judge, 
and to execute Iter oiun decision. She cared indeed as little 
for the Supreme Court, in such an emergency, as she did 
for the other Courts of the Union; whose decisions had 
been repeatedly treated with contempt, and resisted with 
impunit}", by her very loyal citizens during the great 
trouble of the war. 

Why, then, did Massachusetts submit at last? Why 
did so great a change come over the spirit of her dream? 
The answer is a very simple one. It is told in the printed 
proceedings of the Hartford Convention. The story is 
certainly not so well adapted to the purposes of poetry, or 
of oratorv, as the fine fiction invented by Mr. Webster; 
but it has, at least, the homely merit of truth. Har- 
rison Gray Otis, T. H. Perkins, and W. Sullivan, the 
commissioners appointed by the Convention to lay the 
trrievance? of Xew Endand before the Government of the 



IS DAVIS A TRAITOR? 199 

United States, reported that tliey Lad declined to do so, 
'' because they found, on tlieir arrival at Washington, that 
2)eace had been concluded.'' * lliat was the secret of the 
submission of Massachusetts. The war with Great Britain 
was at an end ; the embargo and non-intercourse would, of 
course, no longer vex her righteous soul; she could unfurl 
the wings of her commerce to every breeze, and bring in 
harvests of gold from every quarter of the globe. That 
was the secret of her great-hearted loyalty and submission. 
She no longer had anything to submit to ! 

Sidney Smith complains of " exegesis,'^ that it spoils so 
many fine sermons; not allowing the preacher to ramble 
in his rhetoric, or to flourish at random, without regard 
to the real sense of his text. The same complaint may be 
urged against the simple truth of history. How many 
splendid orations, and grand soaring flights of rhetoric, 
will it not spoil for the people of New England ! How 
many self-flattering and glorious illusions will it not dispel ! 

" That their object was," said Mr. John Quincy Adams, 
" and had been for several years, a dissolution of the 
Union, and the establishment of a separate Confederation, 
he knew from unequivocal evidence, although not prova- 
ble in a court of law; and that in case of a civil war, the 
aid of Great Britain to eft'ect that purpose would be 
assuredly resorted to, as it would be indispensably neces- 
sary to their design." f 

This design, says Mr. Adams, he had communicated to 
Mr. Jefferson^ in 1809. Again, while President of the 
United States, Mr. Adams said : " That project, I repeat, 
had gone to the length of fixing upon a military leader 
for its execution; and although the circumstances of the 
times never admitted of its execution, nor even of its full 
development, I had no doubt in 1808 and 1809, and have 

* Proceedings of Hartford Convention, p. 33. 
t Ivetter of Dec. 30, 1828, in reply to Harrison Gray Otis and 
others. 



200 IS DAVIS A TRAITOR? 

no doubt at this time^ that it is the key of all the great 
movements of the Federal Part}^ in Xew England, [and 
that party was then in the ascendency in Xew England^ 
from that time forward till its final catastrophe in the 
Hartford Convention/' * 

"It is but fair to observe/' says Mr. Buchanan, "that 
these statements were denied by the parties implicated, 
but were still adhered to and again reaffirmed by Mr. 
Adams." f True, it is but fair that their denial should be 
known; and estimated at its true value. But who could 
expect any men to acknowledge their complicity in such 
a design? If, in the dark hour of their country's trial, 
engaged in a war with the greatest nation upon earth, 
they could conceive the idea of deserting her standard, and 
even of invoking the aid and the arms of her powerful 
enemy to make their desertion good, is it to be supposed 
that, after the scheme had failed or blown over, they 
would have pleaded guilty to such a design? Xor is this 
all. What did they mean by appointing another Conven- 
tion to be held at Boston? Did they mean nothing? Or 
if they had any honorable design, — any design which need 
not shrink from the light of day, — why has it never been 
avowed by them? The truth is, if any one shall carefully 
examine the proceedings of the Hartford Convention, and 
the previous history of New England which culminated in 
that Convention, he can hardly fail to perceive, that the 
positive testimony of John Quincy Adams, is most power- 
fully corroborated by circumstances. The conclusion of 
Mr. Buchanan appears perfectly true: "that this body 
[the Hartford Convention] manifested tlieir purpose to 
dissolve the Union, should Congress refuse to redress the 
grievances of which they complained." 

Four years before the date of the Hartford Convention, 
Mr. Josiah Quincy, an influential member of Congress 

* BiK'Tianan's Administration, p. 87. 

t Letter of Dec. 30, 1828, in reply to H. Gray Otis and others 



IS DAVIS A TRAITOR? 201 

from Massachusetts, "publicly declared the right of seces- 
sion. The extract from his speech on the 14th January, 
1811, is hackneyed; but it is, nevertheless, significant of 
what was then passing in the mind of Massachusetts. It 
is also exceedingly significant; because it was uttered in 
opposition to the admission of Louisiana into the Union 
as a State. " If this bill passes/' said he, " it is my delib- 
erate opinion that it is virtually a dissolution of the Union ; 
that it will free the States from their moral obligation 
and, as it will be the right of all, so it will be the duty of 
some, definitely to prepare for separation, amicably if they 
can, violently if they must." Nay, upon the purchase of 
Louisiana in 1803, the Legislature of Massachusetts passed 
the following resolution : " Resolved, That the annexation 
of Louisiana to the Union, transcends the Constitutional 
power of the Government of the United States. It formed 
a new Confederacy to which tJie States united hy the for- 
mer compact, are not bound to adhere." Thus, as we have 
seen, Massachusetts from the foundation of the Federal 
Government down to 1815, held the Constitution to be a 
compact between the States, and the Union to be a Confede- 
racy. In her ordinance of ratification in 1788 ; in her reply 
to the Resolutions of '98; in her own resolution of 1803-4; 
she most distinctly announced this doctrine. Hence, it seems 
impossible to doubt the statement of John Quincy Adams,* 
that the Hartford Convention deduced the right of seces- 
sion from the fact, that the Constitution was a compact 
between the States of the Confederacy. This was a clearly 
legal inference. Rawle, Storv, and Webster all admit it 
to be such. Thus the fathers, one and all, laid down the 
great premise or postulate of the doctrine of secession at 
the very foundation of the I'nion ; and the New England 
States, in 1815, deliberately drew the inference, and 
asserted the right of secession. Yet these States, in 1861, 
took the lead of all others in the fierceness and the bitter- 
* Letter of Dee. 30, 1828, to H. Gray Otis, &c. 14 



202 IS DAVIS A TRAITOR? 

ness of their denunciation of secession as treason and 
rebellion! The first to assert for themselves, and yet the 
first to persecute in others, this great right ! 

It is thus that Josiali Quincy, the Webster of 1815, as- 
serted the fundamental principle or postulate of secession : 
" Touching the general nature of that instrument called 
the Constitution of the United States, there is no obscu- 
rity ; it has no fabled descent, like the palladium of ancient 
Troy, from the heavens. Its origin is not confused by 
the mists of time, or hidden by the darkness of past, un- 
explained ages ; it is the fabric of our dcu/. Some now liv- 
ing had a share in its construction; all of us stood by, and 
saw the rising edifice. There can he no doubt about its na- 
ture. It is a political compact/' Is this the same Josiah 
Quincy, or was it his son, who, in 1861, made himself so 
conspicuous by denouncing secession as treason? It is 
certainly the same Josiah Quincy, who, in 1811, was 
called to order in Congress for asserting the right of seces- 
sion, and voted to be in order. How rapidly tlie Xew 
England world turns upon its political axis! In 1815, as 
secession was the right of all, so it was the duty of some 
of the States; and, in 1861, it was treason and rebellion! 

Did the South condemn Secession in 1815? 

The South, it has been repeatedly asserted, condemned 
the secession of 1815 as treason, and is, therefore, estopped 
from complaining of the same sentiment in 1861. " This," 
it is urged, " nuxy be said to be res adjudicata. All parties 
are committed against the right of secession." 

Xow, even if the facts were as alleged, still this would 
be a one-sided logic. For if the South, in 1815, con- 
demned secession, it was the secession which Xew Eng- 
land had approved; and if the North, in 1861, denounced 
secession, it was precisely the right which the South had 
asserted. Hence, it is just as true, that all parties were 
committed for, as that all parties were committed against, 
the right of secession. 



IS DAVIS A TRAITOR? 203 

If, as is supposed, the minority was, in both instances, 
in favor of the right of secession, and the majority opposed 
to it; this vould have been nothing very strange or won- 
derful. It would only ha\e illustrated the saying of 
Aristotle, which all history confirms, that " the weak 
always desire what is equal and just; but the powerful 
pay no regard to it." 

But the facts have not been accurately stated. It is 
true, that the South, as well as other portions of the 
Union, vehemently condemned the Hartford Convention. 
No Convention, or assembly, was ever more odious to the 
great body of the people of the United States. But its 
proceedings were secret; and, till the appearance of Mr. 
Adams' letter of Dec. 30th, 1828, its precise object or de- 
sign was not generally known. It may be doubted, indeed, 
if it was ever condemned by any portion of the South, on 
the simple ground, that it claimed for the Xew England 
States merely the right to secede from the Union, and to 
be let alone. It was, however, known to the South, that 
the Xew England States had insisted on a war wdth Great 
Britain in order to defend and secure the rights of their 
seamen. It was also known, that while the South was 
engaged in this war, the New England States not only 
failed to do their duty, but denounced the war they had 
instigated, and the government by which it was carried on. 
It is true that, by these proceedings, the wrath of the 
South was awakened, and that she denounced them as 
treason ; because they gave " aid and comfort " to the 
enemy. From all that had preceded, how could the South 
know, indeed, but that the Hartford Convention had 
formed the dark design of appealing to arms against the 
Government of the United States, and of joining Great 
Britain in the war against the people of this country ? 

Even if the South had known, that 'New England merely 
designed, in 1815, to secede from the Union; still her 
indignation would not have been without just cause. For, 



204 IS DAVIS A TRAITOR y 

liaving got the South into a war with Great Britain^ was 
that the time for her to desert the standard of her eoun- 
tr}'^ arid leave the other States exposed to the full brunt 
of its fury? The clearest right may, indeed, be exercised 
in such a manner, and under such circumstances, as to 
render it odious. The right of secession has, no doubt, 
been made to appear treasonable, by its association with 
the Hartford Convention of 1815. 

Far otherwise was the conduct of the South. She held 
no secret Conventions. All her proceedings were as open 
as the day. The United States were at peace with all the 
world. It was under these circumstances, that the States 
of the South^ each in its own Convention assembled, with- 
drew from the Union, and asked to be let alone. But the 
South was not permitted to enjoy the government of her 
choice. On the contrary, she was subjugated, impover- 
ished, and ruined, with the avowed design to bring her 
back into the Union; and now that she is knocking at the 
door of the Union, she is not allowed to enter. What, 
then, is left to her sons and daughters but to weep over 
the inconsistency and wickedness of mankind ; and, if pos- 
sible, to pray for their enemies ? 

Thomas Jefferson on the Right of Secession. 

Though Mr. Jefferson was not one of the architects of 
the Constitution; yet has more stress been laid on his 
supposed opposition to the right of secession, than upon 
that of any other statesman of America ; especially by 
foreign wTiters. We are gravely told, with the usual 
information of such writers, that " Mr. Jefferson was, in 
after life, the foremost champion of State's rights." * We 
are also informed, that "he would certainly have turned 
away with abhorrence from the consequences to which 
these [rights] have since been driven." f This last senti- 
ment is, perhaps, conformed to the general opinion at the 
Xorth on the same subject. But is it true? 

* Tlislnry of tlie United States, by J. M. Ludlow. t Ibid. 



IS DAVIS A TRAITOR? 205 

It is certain, in the first place, that Mr. Jefferson him- 
self deduced the right of nullification from the doctrine of 
State-rights ; not " in after life," but in 1799, before he was 
President of the United States. Mr. Everett, I am aware, 
insinuates that Mr. Jefferson never favored the doctrine 
of nullification. " Such, in brief," says he, " was the main 
purport of the Virginia and Kentucky resolutions." The 
sort of interposition indeed was left in studied obscurity. 
Not a word was dropped of secession from the Union. 
Mr. Nicholas' resolution in 1709 hinted at "nullification" 
as the appropriate remedy for an unconstitutional law^ 
but what was meant by the ill-sounding word was not 
explained." * Now this statement is of a piece with the 
main substance of that grand swelling oration of the great 
Massachusetts declaimer. It is utterly devoid of truth. 

In the first place, Mr. Jefferson himself in his correspon- 
dence, replied to the enquiry of the son of Mr. Nicholas, 
that his father was not the author of the resolutions in 
question. Mr. Jefferson says : " I drew and delivered 
them to him." f 

Nor is this all. " Two copies of these resolutions," says 
the editor of Mr. Jefferson's works, " are preserved among 
the manuscripts of the author, both in his own hand- 
writing. One is a rough draft, and the other very neatly 
and carefully prepared. The probability is, that they are 
the original of the " Kentucky Resolutions on the same 
subject." I Let us see, then, the very language of these 
Resolutions, and the manner in which they " hinted at nul- 
lification." 

The first resolution is in these words : '' Resolved, That 
the several States composing the United States of Amer- 
ica, are not united on the principle of unlimited sub- 
mission of their general government, but that, by a 
compact under the style and title of the Constitution 

* Rebellion Record, vol. L, p. 20. 

t Jefferson's Works, yol. vii., p. 229. t Ibid vol. ix., p. 464. 



20G IS DAVIS A TRAITOR? 

of the United States^ and of amendments thereto, they 
constitute a general government for special purposes ; , 
and that whensoever the general government assumes 
undelegated j^owers its acts are unauthoritative, void, and 
of no force, that to this compact each State acceded as a 
State, and is an integral party, its co-States forming, as to 
itself, the other party; that the government created hy this 
compact was not made the exclusive or final judge of the ex- 
tent of the poicers delegated to itself; since that would have 
made its discretion, not the Constitution, the measure of its 
powers; but that, as ix all cases of co:\ipact amoxg 

POWERS IIAVIXG XO COMMOX JUDGE, EACH PARTY HAS AX 
EQUAL RIGHT TO JUDGE FOR ITSELF, AS W^ELL OF IXFRAC- 
TIOXS AS OF THE MODE AXD MEASURE OF REDRESS.'' * So 

much for the postulate. 

The conclusion is in these words : Eesolvcd, That. '. . . . 
where powers are assumed which have not been delegated, 
a nullification of tlie act is the rightful remedy: that 
every State has a natural right in cases not within the 
compact, [casus non foederis,'] to nullify of their own 
authority all assumptions of power hy others within their 
limits ; that without this right, they would be under the 
dominion, absolute and unlimited, of whosoever might 
exercise this right of judgment for them; that neverthe- 
less, this commonwealth, from motives of regard and 
respect for its co-States, has wished to communicate with 
them on the subject; that with them alone it is proper to 
communicate, they alone being the pa?'ties to judge in the 
last resort of the powers exercised under it, Coxgress be- 

IXG NOT A PARTY, BUT MERELY THE CREATURE OF THE COM- 
PACT, AXD SUBJECT AS TO ITS ASSUMPTIOXS OF POWER TO 
THE FIXAL JUDG:MEXT OF THOSE BY WHOM, AXD FOR 
AVIIOSE USE ITSELF .\XD ITS POWERS WERE ALL CREATED AXD 

zvrODTFiED,'' cl'c. Such is the language of Thomas Jeffer- 
son ! Is it merely a modest " hint at nullification?'' 

Some alterations were made in the resolutions, as penned 

* Jefferson's Works, vol. ix., p. 464-5. 



IS DAVIS A TRAITOR? 207 

by Mr. Jefferson^ before they were passed by the Legisla- 
ture of Kentucky. But the first resolution above given 
was not altered at all ;. it was passed precisely as it came 
from the pen of Mr. Jefferson^ with only one dissentient 
vote! In the resolutions as passed by the State of Ken- 
tucky^ we find these words :■ '^ That the principle and con- 
struction contended for by sundry of the State Legislatures, 
that the General Government is the exclusive judge of the 
extent of the powers delegated to it, stop nothing short of 
despotism — since the discretion of those who administer 
the government, and not the Constitution, Avould be the 
measure of their powers: That the several States luho 
formed that instrument being sovereign omd independent, 
have the unquestionable right to judge of the infraction; 

and, THAT A NULLIFICATIOX BY THOSE SOVEREIGXTIES, OF 
ALL UXAUTHORIZED ACTS DONE UNDER COLOR OF THAT IN- 
STRUMENT IS THE RIGHTFUL REMEDY." * 

Such is the language, which Mr. Everett so very 
modestly calls a " hint at nullification !" ^ 

He must be a dull logician, indeed, or a partial one, who 
does not see, that both nullification and secession flow 
from the great fundamental doctrine of the A^irginia and 
the Kentucky Eesolutions. If, according to that doc- 
trine, stated in the very words of Massachusetts, " the 
States, who have no common umpire, are to be their own 
judges, and to execute their own decisions;" then most 
assuredly they may pronounce in favor of either nullifica- 
tion or secession. Any State may, it is true, bring re- 
proach on this right of sovereignty, by the manner in 
which it is exercised. I have, indeed, always doubted 
whether nullification was a wise, or judicious, exercise of 
the right of State sovereignty. It is certain, that Mr. 
Webster, as well as many others has pointed out so many 
inconveniences, not to say absurdities, connected with the 
art of nullification; that the right has usually been re- 

* Elliot's Debates, vol. iv., p. 571. 



208 IS DAVIS A TRAITOR? 

jected with contempt. But the exercise of a right is one 
thing; and the existence of that right is another. A man 
may, in his own affairs, judge unwisely; but does that 
prove that he had no right to judge for himself? In like 
manner, it does not follow, that a sovereign State has no 
right to be her own judge; because she may judge un- 
wisely. It is, then, false reasoning to conclude that a 
State has no right to nullify, because the act of nullifica- 
tion is full of inconveniences, or even absurdities. Yet 
this kind of sophistry is precisely the amount of all the 
logic, whicli has been urged against nullification. If a 
man, who has the right to judge for himself in his own 
business, makes an unwise decision ; shall the right, there- 
fore, be taken from him^ and given to another? Shall his 
decision be declared null and void; and the decision of 
some other person substituted in its place ? Nothing could 
be more unjust and despotic. Nor will any sovereign State 
submit to be treated in a similar manner by any unauth- 
orized power on earth. The act of nullification has, no 
doubt, brought reproach on the doctrine of State-rights, 
and especially on the right of secession; but then this has 
been just because men have failed to think accurately and 
profoundly on the subject. They have confounded the 
propriety, or judiciousness of an act, with the right of 
the party to do the act. than which a worse solicism could 
hardly be perpetrated. 

Nullification is, however, but indirectly connected with 
secession. This riglit flows, as we have seen, directly 
from the doctrine of Mr. J efferson, " that as in all other 
cases of compact, among parties having no common judge, 
each party has an equal right to judge for itself, as well 
of infractions as of the mode and measure of redress." 
To say that a State has the right to judge of infractions 
of the compact of the Constitution by the Federal Gov- 
ernment, and also of the mode and measure of redress; 
iinrl, at the snmo time, that it lias no right to decide upon 



IS DAVIS A TRAITOR r 201) 

secession as the proper remedy; is, it seems to me, simply 
a contradiction in terms. ISTow the question is, was Mr. 
Jefferson guilty of this act of glaring inconsistency, or 
self-contradiction ? 

He ^^ would have turned away with abhorrence," it is 
said, " from the consequences " which have been deduced 
from the doctrine of State rights. In this bold assertion, 
the writer had special reference to the right of secession; 
which his history of the United States, as it is called, was 
written to demolish. Hundreds have, indeed, attempted 
to throw the great weight of Mr. Jefferson's authority in 
the scale against the right of secession^ by means of the 
following extract from his works : " If to rid ourselves of 
the present rule of Massachusetts and Connecticut, we 
break the Union, will the evil stop there? Suppose the 
Xew England States alone cut off, will our nature be 
changed ? Are we not men still to the South of that, and 
with all the passions of men ! Immediately, we shall see 
a Pennsylvania and a A'irginia party arise in the residuary 
confederacy. "What a game too will the one party have 
in their hands, by eternally threatening the other that 
unless they do so and so, they will join their Northern 
neighbors. If we reduce our Union to A^irginia and North 
Carolina, immediately the conflict will be established be- 
tween the representatives of these two States, and they 
will end by breaking into their separate units." 

Now this partial extract, which has gone the rounds of 
the civilized world, gives an utterly false view of Mr. Jef- 
ferson's opinion. The context to the above passage, 
which is sometimes permitted to accompany it, shows 
that Mr. Jefferson really believed in the right of secession, 
and only argued against the intemperate and too hasty 
exercise of that right. " If," says he, in the sentence im- 
mediately preceding the above extract, " on the tem- 
porary superiority of one party, the other is to resort to a 
scission of the Union, no federal government can exist." 



210 IS DAVIS A TRAITOR? 

How perfectly true ! If^ for so trilling a cause, any 
union of States should be dissolved, it would soon be re- 
solved into its original units. The union would not long 
exist, and it would not deserve to exist, if its members 
were such fools as to resort to the right of secession "' on 
the temporary success " of every party therein. But to- 
argue, as Mr. Jefferson does, against the too hasty and 
intemperate exercise of the right is to acknowledge the 
existence of the right itself. 

In the Declaration of Independence, Mr. Jefferson said, 
" that long established governments should not be changed 
for light and transient causes/' ^N'or, however clear the 
constitutional right, would he have dissolved the Union 
for such causes. But does he sa}', that he would not ad- 
vocate a scission of the Union for any cause whatever? 
That in no event whatever, he would resort to the right of 
secession? There is no such doctrine in his writings: no 
such glaring self-contradiction in any portion of his 
works. 

On the contrary, in consultation as to what the Ken- 
tucky Resolutions of '98 and '99 should contain, he wished 
the following sentiments to be incorporated therein : '^ Ex- 
pressing in affectionate and conciliatory language our warm 
attachment to the Union with our sister 'States, and to 
the instrument and principles by which we are united; 

THAT WE ARE WILLING TO SACRIFICE TO THIS EVERY THING 
BUT THE RIGHTS OF SELF-GOVERNMENT IN THOSE i:\rrOR- 
TANT POINTS WHICH WE HAVE NEVER YIELDED, AND IN 
WHICH ALONE WE SEE LIBERTY, SAFETY AND HAPFINESS.''' * 

Is it not perfectly obvious, from this passage, that Mr. 
Jefferson had not been so dazzled by the glories of the 
new Union, as to forget the immortal principles of the 
Declaration of Independence? 

Devoted to the Union, but still adhering to the great 
principles of 1770, he immediately adds, that we are "not 

* Jefferson's Works, vol. iv., p. 305-6. 



IS DAVIS A TRAITOR? 211 

at all disposed to make every measure of error or of 
wrong, a cause of scission.*' Could language more clearly, 
or more necessarih' imply, that there are measures of 
error, or of wrong, winch he would make a ground of 
scission, or secession from the Union? Or could any 
doctrine be more clearly asserted, than is the opinion of 
Mr. Jefferson, that the States, and the States alone, are to 
be the judges whether the measure of error, or of wrong, 
which justifies her secession, has been filled or otherwise? 

The Political Creed of the State-Rights Party. 

The Virginia Eesolutions of *98 and the Kentucky lieso^ 
lutions of '98 and '99, the former from the pen of '' the 
father of the Constitution," and the latter from the pen 
of the author of the Declaration of Independence ; consti- 
tuted, for at least forty years, the political creed of the 
great State-Eights party. They were, as every one 
knows, the manifestoes on which Thomas Jefferson went 
before the people, in 1800, as candidate for the Presidency 
of the United States? They were also inscribed on the 
banners of tlie party by which Madison, and Monroe, and 
Jackson, and other candidates, were supported for the 
same high office. Were they, then, at that time, deemed 
treasonable by the people, or by their leaders? Let us 
glance at the record and see. 

In 1800, Mr. Jefferson beat his opponent, John Adams, 
then President of the United States, by a majority of 
eight votes in the electoral college, or by a vote of 73 to 65. 

In 1804, Mr. Jefferson, the champion of State-Rights, 
beat his opponent by the overwhelming majority of 1G2 
votes to 14. In the Xorthern States alone, Mr. Jefferson 
received 85 votes, and his opponent only 9. 

In 1808, Mr. Madison beat his opponent by a vote of 
122 to 47; and, in spite of the dissatisfaction of the Xew 
England States, he received from the whole Xorth a 
majority of 50 to 39 votes. 



212 IS DAVIS A TRAITOR? 

In 1812, he defeated De Witt Clinton, a distinguished 
citizen, and formerly Governor of New York, by a major- 
ity of 128 to 89 ; receiving in the Northern States only 
40 votes to his rival's 80. 

In 1816, James Monroe, of Virginia, received 183 votes, 
and his opponent only 34; and more than one-half of 
these 183 votes were given by Northern States. 

In 1820, Mr. Monroe was elected over John Quincy 
Adams^ of Massachusetts, by the majority of 231 votes to 
13. Two other candidates were in the field at the same 
time, Crawford and Jackson; botli of whom together re- 
ceived only 11 votes. 

This vote, however, can hardly be regarded as a test of 
the popularity of the doctrine of State-Eights ; since this 
was, in 1820, professed by all the candidates for the Presi- 
dency. Yet this fact shows, that the opposite party had 
been so often and so completely defeated, that it refused 
to nominate a candidate. But James Monroe, the succes- 
sor of Jefferson and Madison, and well known as an ardent 
advocate of the doctrine of State sovereignty, swept the 
whole country, and carried every thing before him 
like a tornado. Henceforth all aspirants for the Presi- 
dency bowed down to that great symbol of political truth 
and power, the Virginia Eesolutions of '98. Even Mr. 
"Webster approached them with evident signs of awe, and 
never ventured to speak of them otherwise than in teruis 
of marked respect, if not of veneration. No living soul 
dared to breathe the suspicion that any one of their doc- 
trines was treasonable. 

How, then, did it happen, that those doctrines were 
afterward arraigned by Story and Webster as at war with 
the Constitution of the United Sates? How did it hap- 
pen, that, without the most distant allusion to the Vir- 
ginia Eesolutions, under which so many battles had been 
fought and so many victories won, the great orator of 
New Euiiland had the audacitv to declare, that all the 



IS DAVIS A TRAITOR? 213 

fathers of the Constitution, that all the publications of 
friends and foes, denied the Constitution to be a compact 
between sovereign States? The foregoing brief sketch 
of the progress of opinion in regard to the nature of the 
Constitution would be incomplete without an answer ta 
this question; without some notice of the causes by which 
so marvellous a revolution was produced. 

The Decline of the Doctrine of the Sovereignty of the 
States and its Causes. 

Mr. Dane says : " That for forty years one great party 
has received the Constitution, as a federative compact 
among the States, and the other party, not as such a com- 
pact, but in the main national and popular." * Xow, as 
we have seen in this chapter, the above statement is not 
true. The federal party itself, with Hamilton at its head, 
admitted the Constitution to be a compact between the 
States. The State of Massachusetts, the great leading State 
of that party, always held the Constitution to be such a 
compact previous to the year 1830. She held this doctrine, 
as we have just seen, "in 1788, in 1799, in 1803; and 
she continued to hold it until, in 1815, it culminated in the 
avowed right of secession. There is, then, no truth in the 
statement, that for forty years one great party denied the 
Constitution to be a federative compact among the States. 
One great party, it is true, showed a strong disposition to 
deny the sovereignty of the States in the Union, and to 
assert the sovereignty of the Federal Government. But 
the doctrine imputed to it was not one of its heresies. 

Neither Mr. Dane, nor Judge Story who quotes his 
words, is pleased to inform the reader that " the great 
party," which is asserted to have sanctioned their own 
heresy, was swept from existence by ithe other great 
party. It sank so low, in fact, after the war of 1812, and 
became so odious, that none was so humble as to do it 
reverence. 



* Quoted in Story's Com., vol 1., p. 288, note. 



214 IS DATIS A TRAITOR? 

Xor do they inform the reader, that the great leaders 
of this very iDarty in Xew England, became in 1815, when 
in distress, the warmest of all existing advocates for the 
rights and the sovereignty of individual States. They do 
not even drop a hint, that those leaders, those staunch 
advocates of the sovereignty of the Federal Government, 
were the first to insist on the right of secession; a fact 
which would have detracted very much from the weight 
of their authority against the doctrine of " a federative 
compact among States," even if they had ever rejected 
that doctrine. 

History acquits the old federal party of the monstrous 
heresy imputed to it. Having Ijeen chief agents them- 
selves in framing " the federative compact " for the States ; 
and having anxiously watched the States as, one after 
another, each acceded to that compact ; such a heresy, such 
a perversion of the facts falling under their own observa- 
tion, would have been utterly beyond their power. How, 
then, and why, did the heresy in question raise its head in 
the Xorthern States? 

This question is easily answered. 

1. The doctrine of a compact is attended with one 
great inconvenience; the inconvenience^ namely, that if it 
be violated by one of the parties, the other parties are 
absolved from its obligations. This great inconvenience is 
set forth by Dr. Paley; to whose chapter on the subject, in 
his Political Pliilosophy, ^Ir. Justice Story refers. Xow 
this doctrine makes tlie stability of the Federal Compact 
depend on the good faith of all the parties: wliich seemed 
quite too frail a foundation for the Union. Hence, the 
doctrine of a federative compact, which, for forty years 
had been held bv both the great parties of the United 
States, was explained away, and the will of the strongest 
substituted in its place. According to hisl:heory, then, tlie 
Union rested, not on tlie justice of the parties, but on the 
despotic power of the dominant faction. He thus placed 



IS DAVIS A TRAITOR? 215 

the Union, by his construction, on what he conceived to 
be a more solid foundation "than a federative compact 
between the States." But this, as we have seen, was to 
subvert the foundation laid by the fathers of the Union; 
and, in order to make good his theory, he had to falsify 
tlie whole political history of the United States during the 
first forty years of the existence of the new Union; espe- 
cially the views and the authority of its founders. 

2. The right of secession had never been seriously con- 
sidered by any party, so long as the Union was prosperous 
and happy. But, during the period from 1803 to 1815, the 
great leaders of Xew England, regarding their section as 
grievously oppressed in the Union, revolved the great 
theme in mind, and, for the first time in the history of 
parties, deliberately asserted the right of secession. In 
view of this alarming event, it became still more impor- 
tant, in the opinion of Mr. Justice Story and other con- 
structionists, to deny the doctrine of a federative compact, 
from which, as he saw and admitted, so frightful a con- 
sequence necessarily resulted. 

3. This denial became the more indispensable, in Judge 
Story's opinion; because Mr. William Eawle had, in 1825, 
asserted the right of secession in his work in the Consti- 
tution. Mr. Justice Story alludes to the opinion of Mr. 
Eawle, and, deploring it, he bent all his energies and 
erudition to demolish the doctrine of a federative compact, 
from which that right necessarily results. Thus, accord- 
ing to his theory, the Union was to be hooped with bands 
of iron, and not trusted to the mutual sympathy and good 
faith of its members. 

4. But. however great and commanding the influence 
of Story's opinion, or view of the Constiution, it would 
have been comparatively feeble; if it had not been aided 
by public events. South Carolina, feeling herself and some 
of her sister States grievously oppressed in the Union, by 
tlie tariffs of 1821 and 1828; planted herself on the great 



2U] IS DAVIS A TRAITOR? 

platform of State-Riglits, and nullified the act of Congress. 
The indignation of the North was aroused. Xullification, 
it was said, led directly to secession, or a dissolution of the 
Union. The New England States, whieli had only fifteen 
years before advocated the right of secession, now led the 
fierce crusade against its advocates. John C. Calhoun, 
the great nullifier^ was the mark of tlieir fury. It was in 
this contest, as every one knows, that the great orator of 
New England, Mr. Webster, put forth " the greatest intel- 
lectual effort of his life,'' if not of the human mind. The 
whole North was electrified by his eloquence; and became 
intoxicated with his fictions. 

Much has been said about the Northern and the South- 
ern theories of the Constitution. The true word is, how- 
ever, the theories of the majority and of the minority. 
For the Southern theory, as it is called, originated in New 
England ; and, passing from minority to minority, found a 
permanent resting place in the South. Yet it may, with 
truth, be called the Southern theory; since the South has 
always been in the minority in tlie new Union. 

Mr. Webster lived to pronounce a splendid eulogy on 
the virtues, the patriotism, and the genius of John C. Cal- 
houn; with whom he had long served in the Senate of 
the United States. But the successors of Mr. Webster 
have, for more than eighteen long months, held the bosom 
friend and the peer of John C. Calhoun in prison at For- 
tress Monroe, as if he were already a convicted felon and 
traitor. Yet is it, as we have seen, 1ii>; onlv crime, t'.icit lie 
sat at the feet of Thomas Jefferson, " the immortal author 
of the Declaration of Independence ;" and there learned 
the right of secession. Shall the people, then, who sang 
loud hozannas to the great master, follow the equally 
great disciple with tlie cry of crucify him, crucify him? 
Or shall it be said, that they voted tlie Presidency for the 
one, and a prison for the other? 



C H A P T E E XIX. 

Tlie causes of Secession. 

In the preceding chapters, the Constitutional right of 
secession has, it seems to me, been demonstrated. If so, 
then in the eye of reason, the Southern States are acquit- 
ted of every offence against the Constitution, or th<3 
supreme law of the land. But, however clear a legal or 
constitutional right, it may not be always proper to exer- 
cise it. If the Southern States exercised the right of 
secession merely because they possessed that right, or 
merely because they were beaten at an election, or for any 
such "light and transient cause;" then they committed a 
great Avrong. Then, although they violated no law of the 
land, they committed a great and grievous wrong against 
the moral law of the world, by a capricious exercise of 
their sovereign right and power. Hence, the vindication 
of the Southern States in the forum of conscience, as well 
as in that of the law, demands an exposition of the causes 
of secession. It would require a volume to do justice to 
this subject-; and yet, at present, a brief sketch is all that 
can be attempted. 

The Balance of Power. 

From the foundation of the American Union to the pres- 
ent day, the provision of its Constitution for the frac- 
tional representation of slaves, has been more talked about, 
and less understood, than any other clause of that " sacred 
instrument." One would suppose, that if any one really 

[217] 15 



218 . IS DAVIS A TKAITOK? 

desired to ascertain the reason or design of this •"' singular 
provision/' as it is called, he would look into the debates 
of the Convention by which it was inserted in the Consti- 
tution. In these debates, as reported in " The Madison 
Papers/' the reason or design of the fathers in the enact- 
ment of that clause is as clear as the noonday sun. Yet 
in all that has been written by the Xorth on the subject, 
there is not even a glimmering of light as to that reason 
or design. Men make books, says old Burton, as apothe- 
caries make medicines, by pouring them out of one bottle 
into another. This has most emphatically been the way 
in which men have made books on " the American Ques- 
tion ;'' and, in the case before us, the bottles were originally 
filled, not at the pure fountains of historic truth, but from 
the turbid streams of ignorance, falsehood, and misrepre- 
sentation. Yet, for three quarters of a centurv, has all 
this vile stuff been continually poured out of one book into 
another. Accordingly, we find it in a hundred books on 
both sides of the Atlantic: uttered with just as much con- 
fidence as if the authors had some knowledge on the sub- 
ject. 

Thus are we gravely told, and with great confidence, 
that " the weakest point in the Constitution lies elsewhere. 
It lies in that truckling to the slave-power which is ob- 
vious in it ... It lies especially in that singular provision for 
what is termed ' black ' or ' slave ' representation, where- 
by alone, amongst all species of property, that in human 
flesh is made a source of political power." * Xow, if any 
thing in history is certain, it is that, after a protracted 
debate, the Convention of 1T8T agreed that population, 
and papulation alone, should constitute tlie basis of repre- 
sentation. Tlie slaves were not represented at all as prop- 
erty. This is evident, not only from the debates of the 
Convention of 1T8T, but from the very face of the Con- 
stitution itself. " Representatives,*' says that document, 

* History, l)y T. :\r. Ludlow, pp. 44-5. 



IS DAVIS A TRAITOR? 219 

''shall be apportioned among the several States which 
may be included within this Union, according to their 
respective numbers, (not one word is said about property), 
which shall be determined by adding to the whole num- 
ber of free persons, including those bound to service for a 
term of years, and excluding Indians not taxed, three- 
fifths of all other persons/' Thus, in this very clause, the 
slaves are called " persons," and are to be represented as 
such, not as property. Hence, when Mr. Greeley, in his 
"American Conflict,"^ wishes to prove that the Constitution 
regards slaves as '* persons," he quotes the clause in ques- 
tion. Xay, Mr. Ludlow himself, when it suits his purpose, 
can recognize the truth, that the Constitution "• never 
speaks of the slaves as a property, but as a person."' * If, 
indeed, slaves had not been regarded as persons, they 
would not have been admitted into the basis of represen- 
tation at all. 

Xow, did the Xorth truckle to the South, in conceding 
that slaves are " persons ?" Mr. Patterson, of Xew Jersey, 
and some other Xorthern members, endeavored to ex- 
clude slaves from the basis of representation on the ground 
that they were "property;" but Mr. Butler and Mr. C. C. 
Pinckney, both of South Carolina, insisted that they were 
"persons," that they were a portion of the laboring and 
productive " population " of the South : and as such, should 
be included in the basis of representation on a footing of 
equality with other " inhabitants." The Convention de- 
cided that they were "persons." Was this decision cor- 
rect ? Or was it, on the contrary, a mean " truckling to 
the slave power ?'" 

In the declamations on this subject, it is usually taken 
for granted by Xorthern writers, as well as by Mr. Lud- 
low, that free citizens or voters alone are included in the 
basis of representation for the Xorth, while three-fifths 
of the slaves are embraced in it for the South. Hence, 

* Pa^e 51. 



220 IS DAVIS A TRAITOR? 

this is vehemently denoiiiieed as a " singular provision/' 
as a " strange anomaly/'^ as a most undue advantage to 
the South. But the fact is not so. The assumption is 
utterly false. By the decision of the Convention, and by 
the very terms of the Constitution, " the whole number of 
free persons," whether men, women, children, or paupers, 
are included in the basis of representation. All " per- 
sons," of every age, color, and sex, are included in that 
basis. Hence Mr. Ludlow is mistaken in calling the 
clause in question, " the provison " for " black " represen- 
tation ? The blacks, as such, were included in the general 
provision, and ranked as equal to the whites. In like 
manner. Professor Cairnes errs in saying the clause under 
consideration " is known as the three-fifths vote " * Xo 
such thing as a "three-fifths vote" is known to the Constitu- 
tion of the United States ; and the name is the coinage of 
ignorance. The three-fifths clause has nothing to do with 
votes or voting. Xo slave could cast the three-fifths, or 
any fraction, of a vote. The free blacks were, in most 
cases, denied the exercise of the elective franchise. It 
was in counting the number, not of those who should vote, 
but only of those who should make up the basis of repre- 
sentation that five slaves were to be reckoned equal to 
three white persons, or to three free negroes. 

Xow, why Avas this? Had the Convention any rule of 
vulgar fractions, by which a slave was shown to be only 
the three-fifths of a person? And if they had, did not the 
clause in question result from a mathematical calculation, 
rather than from a "truckling to the slave power?" or 
if that was treated as a question of vulgar fractions, why 
did the Convention stop there? AVhy not raise other 
questions of the same kind? Why not consider the prob- 
lem, if a full-grown slave is only the three-fifths of a per- 
son, what fraction of a person is the infant of a day old, 
before the power of thought, or of local motion, has even 

* The Slave Power, eliap. vi. 



IS DAVIS A TKAITOR? 221" 

begun to infold itself in him or her? The truth is, that 
the Convention of 1787 indulged in no such contemptible 
trifling with the great practical questions demanding a 
solution. 

The States were exceedingly jealous of " the sovereignty, 
freedom, and independence,'' which they had expressly 
retained under the Articles of Confederation. The 
Federal Government claimed, on the other hand, an aug- 
mentation of its powers; a claim eloquently nrged by the 
tongues and pens of many of the ablest men in America. 
Hence arose the great conflict between the States and the 
central Power; which, from that day to this, has agitated 
the minds of the Anglo-Americans. In approaching this 
conflict, the Convention first determined, in outline, the 
form of the General Government. It was readily agreed, 
that it should be a Republic, with a Legislature consisting 
of two branches, a Senate and House of Eepresentatives, 
a Judiciary, and an Executive. The next question was, 
what powers shall the States delegate to this General 
Government, this grand Eepublic? After debating this 
question for some time, the Convention discovered that it 
had begun at the wrong end. !N'one of the parties were 
willing to say with what powers the new Government 
should be invested, until it was ascertained what share 
they were to liave in the exercise of tliose powers. 
Hence the Convention found it necessary to retrace its 
steps, and begin with the question of the distribution of 
power among the various members of the Union. In 
this contest for power, each and every party, of course, 
claimed " the lion's share." But each and every party 
could not have " the lion's share." Hence the two mem- 
orable quarrels or controversies of tlie Convention of 
1787; the one between "the large and the small States," 
and the other between " the Xorth and the South." 
Much is known al)0ut the first of tliese quarrels; but the 
liistory of the last A'et remains to l)e written. Its very 



222 IS DAVIS A TEAITOR? 

first chapter is still enveloped in the most profound ob- 
sciirit}^ I speak advisedly, and with the proofs on all 
sides around me, when I say that the Americans them- 
selves have not studied this first chapter in the history of 
the great quarrel between " the North and the South/' 
Let us look into it, then, and see what it teaches. 

In order to adjust and settle the two quarrels above 
mentioned, Mr. Madison laid down the general principle, 
that '' wherever there is danger of attack, there should be 
a constitutional power of defence." No principle could 
have been more reasonable or just; since the object of all 
government is to protect the weak, or those most exposed 
to danger, against the aggressions of the powerful. The 
Convention, without difficulty, agreed to the above prin- 
ciple, when only stated in general terms; but, as usual in 
such cases, a great difference of opinion arose in regard to 
the application of the principle. 

The small States, for example, fearing lest the large 
States should " annex " them, or swallow them up in some 
other way, refused to increase their power in the Union. 
They insisted, that each State, whether small or great, 
should h.ave precisely the same power in both lu-anchcs of 
Congress. This would have placed all the powers of the 
Federal Legislature in the hands of the small States. 
They were willing, nay, tliey were eager to possess them 
all ; jiist as if they had not the least fear that they could 
ever be tempted to do the least injury to the large States. 
But the large States, not having this perfect confidence in 
the justice of their little- neighbors, refused to entrust them 
with the supreme control and destiny of the Union. 
Hence they refused " the lion's share " to the small States. 
They contended^ however, for this share for themselves. 
They contended that each State sliould, in each branch of 
the Federal Legislature, have a power exactly propor- 
tioned to its size or population; an arrangement which 
would have given the absolute control of the Avhole gov- 



IS DAVIS A TRAITOR? 223 

ermncnt of the thirteen States to three States alone. Yet 
those three States, — (Massachusetts, Pennsylvania, and 
Virginia, — ) with a perfect nnanimity and a burning zeal, 
contended for this supreme dominion in the new Union. 
The small States, till then equal in constitutional power 
with the large ones, resented this as a design to degrade 
and enslave them. This contest was the most obstinate 
and violent one of the Convention of 1787. "The truth 
is,'' said Alexander Hamilton, in regard to tliis very quar- 
rel, " it is a contest for power, not for liberty.'' Each 
party, in its eagerness to grasp tlie supreme power, neglect- 
ed the rights and interests of the other. 

This violent contest, which threatened to break up the 
Convention and blast all hope of a " more perfect Union," 
was finally settled by one of " the compromises of the Con- 
stitution." It was agreed, that the States should retain 
their equality in the .Senate, each having two representa- 
tives in that body; and that they should be represented in 
the other branch of Congress in proportion to tlieir popu- 
lations. Thus the small States controlled the Senate ; and 
the large ones, the House of Eepresentatives. Hence 
neither party could oppress the other. As no law could 
be passed without the concurrence of both Houses of Con- 
gress ; so it must obtain the consent of the small States in 
the one, and of the large States in the other Eacli class 
of States held a check upon the power of the other. Tlius, 
where " there was a danger of attack," there was, on both 
sides, given " constitutional power of defence." This 
was, in deed as well as in word^ to " establish and ordain 
liberty." Hence tlie most violent contest of the Conven- 
tion of 1787 ceased to agitate the bosom of tlie new Union. 
This admirable arrangement was proposed by Oliver Ells- 
worth, of Connecticut, and recommended on the ground 
that, in a Republic, it is always necessary to protect the 
minority against the tyranny of the majority. 

The same principles and policy governed tlie Conven- 



224: IS DAVIS A TRAITOR? 

tion in its attempt to adjust and settle tlie great antago- 
nism between the North and the South. Mr. Madison was 
so deeply impressed Avith the importance of arming each 
of these sections with a defensive power against the other, 
that he proposed " the numbers of free white inhabitants " 
as the basis of representation in one House of Congress, 
and the -whole population, including blacks as well as 
whites, as the basis of representation in the other. 
This distribution of power would have given the North a 
majority in one branch of the Legislature, and the South 
a majority in the other. But the proposition failed. Mr. 
Madison did not urge it, indeed, because, as he said, it pre- 
sented a cause of quarrel which was but too apt to arise of 
itself. 

After the States were made equal in the Senate, each 
having two representatives in that bod}^, the North had 
the entire control of it. As there were eight Northern 
States, (Delaware was then considered a Northern State), 
and only five Southern States ; so the North had a majority 
in the Senate of 16 to 10. Hence, if the South was to 
have any defensive power at all, it should have had a 
majority of representatives in the other branch of Congress. 
Accordingly, Southern members insisted on the full repre- 
sentation of the whole population of the South, as well as 
of the North, in order that their section might have a 
majority in one branch of the common Legislature. The 
North, on the contrary, insisted that the slaves should be 
entirely excluded from the basis of representation: which 
would have given that section a decided majority in both 
branches of Congress. Thus, while the South contended 
for a power of self-defence or protection: the North 
aimed at no less than absolute control and dominion. 
The South would not submit. The North and the South 
were then, as they afterward appeared to De Tocqueville, 
"more like hostile nations, than rival parties, under one 
government." The fierce contest for power between 



IS DAVIS A TKAITOR? 225 

them resulted in the compromise of the three-fifths clause 
of the Constitution. In proposing this clause, Mr. Wilson, 
of Pennsj'lvania, said it could not be justified on principle, 
whether property or population were regarded as the 
basis of representation, but that it was deemed " necessary 
as a compromise between the jSTorth and the South. 
As such it was seconded by Mr. C. C. Pinckney, of South 
Carolina, and as such it was adopted by the Convention. 
This clause was, then, a compromise, not between abstract 
metaphysical principles of government, but between the 
opposite and conflicting claims of the two rival sections. 
Did the Xorth, then, " truckle to the slave power ?" It is 
certain, that she grasped at and gained a majority in both 
branches of the common Legislature. For, in spite of 
the clause in question, the North had a majority of 36 to 
29 in the House of Representatives, as well as of 16 to 10 
in the Senate; a share which certainly ought to have sat- 
isfied any ordinary lion. 

But it is the fate of a democracy to be governed more by 
words than by ideas, more by '^ telling cries " than by 
truth. The cry has always been that the slaves, who had 
no wills of their own, were represented in Congress; and 
that this " singular provision," this " strange anomaly," 
had resulted from a base "truckling to the slave power." 
But for this provision, says Professor Cairnes, * there 
seemed to be nothing in the Constitution, " which was 
not calculated to give to numbers, wealth, and intelli- 
gence, their due share in the government of the country." 
Did the general clause, then, which places idiots, paupers, 
free negroes, and infants of all ages, in the basis of repre- 
sentation, provide for nothing but a representation of 
"the intelligence and wealtli of the country?" The 
truth is, that none of these clauses were represented in 
Congress: they were merely considerd in the difficult 
question of the distribution of power among the States 

* The Sla\ e Power, p. 164. 



226 IS DAVIS A TRAITOR? 

and the Sections. The only persons rcalh' represented 
were the voters, who had the legal right to choose their 
own representatives. It was in this way, and in this way 
alone, that the Convention sought to secure a representa- 
tion of the " wealth and intelligence " of the country. 
But who cared for the truth? The telling cry, that slaves 
were represented in Congress, inflamed the passions 
of the Xorth, and served the purpose of demagogues 
infinitely better than a thousand truths. Hence the 
world has l)een filled with clamors about " the slave 
representation of the South. '^ The deceivers are. however, 
careful to conceal the fact that all classes of " persons," 
except the slaves, are reckoned at their full value in con- 
stituting the basis of representation. The women and 
children of the North alone, many of whom were born in 
foreign countries and had never been naturalized in 
America, have been the source of far greater political 
power, than that which has resulted from the whole popu- 
lation of the South. Is it not much nearer to the truth, 
then, to say that the South has been governed by the 
women and children of the Xorth, than that '' the Xorth 
has been governed by the slaves of the South?" 

Immense, indeed, has been the advantage of the clause 
in question to the South ! Only let Mr. Ludlow, or one 
of his school, estimate this advantage, and it is sufficient 
to astonish the world ! It gives to " every poor white " 
at the Soutli, '^ however ignorant and miserable," " ten 
times the political power of the Northerner, be he never so 
steady, never so wealthy, never so able." * How wonder- 
ful the disparity ! And, considering that '* all inen are 
created equal," how infinitely more wonderful, that tlie 
wealthy and the able Xortlierner should have so long and 
so patiently sul)mitted to such an amazing inequality ! 
"What ! The rich Xortherner, the merchant prince, or the 
great lord of the loom, only the one-tenth part of the 

* History, p. 49. 



IS DAVIS A TRAITOR? 227' 

political poAvcr of the ''"' poor white '^ at the South ! Is it 
possible? Mr. Ludlow proves the whole thing by figures; 
and ^' figures/' it is said^ " cannot lie." Let us see, then, 
this wonderful proof of the wonderful fact. '' Suppose/*' 
says Mr. Ludlow, " 300,000 be the figures of population 
required to return a representative, then, whilst 300,000 
freemen of the Xorth are required for the purpose, 30,000 
Southerners, owning collectively 450,000 slaves, or 15 on 
an average (many planta^ons emplo3dng hundreds) are 
their equals politically, and every " poor white," however 
ignorant and miserable, has his vanity gratified by stand- 
ing at the ballot-box the equal of his richest slave-holding 
neighbor, whilst each of them is equally invested with 
ten times the political power of the Northerner, be he 
never so steady, never so wealthy^ and never so able." 
But he must, indeed, have been a most " ignorant and 
miserable " white, if he could have had his vanity grati- 
fied, or his judgment swayed, by any such logical pro- 
cess or conclusion. This specimen of logic, or rather of 
legerdemain, only assumes that none but '' the 30,000 
Southerners," with their " 450,000 slaves, or fifteen on an 
average," are included in the basis of representation. 
But since, in fact, all persons are included in that basis, Mr. 
Ludlow should have taken some little pains to explain to 
his poor ignorant readers how it is jDossible for eight mil- 
lions of whites to own only four millions of blacks; and 
yet for each white to own, " on an average," as many as 
" fifteen slaves." It would seem, without much calcula- 
tion, that, in such a case, there could be only one slave to 
every two whites. If so, then if the slaves had been 
regarded as whole " persons ;" the Southerner would have 
had only one and a half times the power of the N'orth- 
erner. But as, in fact, the slave was counted as little 
more than the half of a person; so the Southerner pos- 
sessed only a little more than one and a quarter times as 
much political power as his Northern neighbor. Ther? 



228 IS DAVIS A TRAITOR? 

was, then, no reason why the vanity of the poor, igno- 
rant white of the South should have been so highly grati- 
fied, nor why the j^ride of the rich nabob of the North 
should have been so deeply wounded. 

But this whole way of viewing the subject is, in reality, 
perfectly puerile. "What has the political power of the indi- 
vidual to do with such a question? There is the broad 
fact, acknowledged by all parties and all sections, that, at 
the time the Constitution was formed, the South was supe- 
rior to the Xorth both in wealth and population. Hence, 
if either wealth or population had been made the basis of 
representation, and fairly carried out in practice, the South 
would have had the majority in one branch of Con- 
gress. As it was, however, the Xorth resolutely fought 
for and secured the majority in both branches thereof. 
Was not this, then, sufficient to gratify the pride of the 
Korth, as well to humble that of the South. Suppose that 
in a society of ten millions of people, eight millions are 
united by one interest, and the remaining two millions by 
another interest. Suppose, again, that in order to get the 
two millions to enter into such a society, each individual 
of them had been allowed two votes, or twice as much 
power as an individual of the eight millions. Would this 
render the two' millions secure? Would this give the 
minority a '"'defensive power" against the majority? 
*' Ignorant and miserable," indeed, must be the individual 
in such a minority, if his vanity could be gratified by the 
possession of twice as much power as an individual of the 
majority, while that majority had the power to rob him 
of both his purse and his good name. 

The. only strange thing in the transaction is, why the 
South should have consented to enter into so unequal a 
union with the Xorth. Why she should liave entrusted her 
rights, her interests, her honor, her glory, and her whole 
destiny to the care and keeping of a foreign and hostile 
majority. Tliis seems tlie more wonrlcrful; because, at 



IS DAVIS A TRAITOR? 229 

that time^ every statesman in America regarded nothing 
as more certain than the tyranny of tlie majority. " Com- 
23laints are everywhere lieard/' said Mr. Madison, in The 
Federalist, " from our most considerate and virtuous citi- 
zens. . .'.that measures are too often decided^, not accord- 
ing to the rules of justice, and the rights of the minor 
party, but by the superior force of an interested and over- 
bearing majority." * 

It was the grand object of the Convention of ITS 7 to 
correct this tendenc}^, this radical vice, if not this incura- 
ble evil of all democratic republics. The evils under which 
the country labors^ it was said in that Convention, are, on 
all hands, ^^traced to the turbulance and violence of democ- 
rac}','^ to the injustice and tyranny of the majority. "To 
secure the public good, and private rights,'' said Tlie Fed- 
eralist, "against the danger of such a faction, {i. e. of such 
"an interested and overbearing majority,") and at the 
same time to preserve the spirit and the form of a popular 
government, is then the great object to wdiich our inquiries 
are directed. Let me add, that it is the great desidera- 
tum, by which alone this form of government can be res- 
cued from the opprobrium under which it has so long 
labored, and be recommended to the esteem and adoption 
of mankind." f Did the South, then, with her eyes open, 
willingly put her neck in the yoke of such a majority ? If, 
as every Southern statesman knew perfectly well, "it is 
of great importance in a republic to guard one part of 
society against the injustice of another part ; " X ^^^ ^^^® 
South really fail to demand such a safeguard? Did she 
place herself under the rule of the Xorth, without taking 
any security for her protection, without claiming any 
" constitutional power of defence ? " Xothing was further 
from her thoughts. If she had been seduced into the 
Union by the idea, by the immense advantage, that each 
of her citizens would have a little more power in one 

*No. X. j Federalist, Xo. x. ilbid. 



230 IS DAVIS A TKAITOR? 

branch of Congress than those of the Xorth; she would 
have been the weakest and most contemptible of creatures. 

The citizen of a small State, such as Delaware or Rhode 
Island, might have had ten, or twenty, or thirty times 
the power in the other House of Congress, whicji a cit- 
izen of Pennsylvania or Virginia jDossessed; and yet this 
would not have satisfied him unless the small States 
could have controlled that branch of the Legislature. 
This control of the Senate was demanded for the small 
States, as one of the indispensable conditions of Union, and 
this demand was conceded- to them; in order that the 
minority might, in this instance, enjoy that freedom, 
and independence, which it had resolutely refused to hold 
at the mercy of the majority. 

By all the principles, then, of the Convention of 1787, 
by the great object for which that Convention assembled, 
by the very nature and design of all constitutional repub- 
lics; they were bound to protect the minority against the 
majority. They were, especially, bound to protect the 
South against the Xorth; the weaker and the richer sec- 
tions against the stronger and the more rapacious. Ac- 
cordingly, this was the grand object of the Convention. 
The design was good; but the execution was bad. The 
South insisted on the three-fifths clause, and some Xortli- 
erii members resisted its enactment ; because it was be- 
lieved, on both sides, that this would ultimately give the 
South a majority in the House of Tiepresentatives. It 
would, as every one knew, give the Xorth the majority 
at the outset; but population was, before tlie adoption of 
the new Union, so much more rapidly increasing at the 
South than at the Xorth, tliat the Convention believed 
that the South would soon gain tlie ascendency in the 
lower House of Congress. The debates of tlie Conven- 
tion bear ample and overwhelming testimony to the prev- 
alence of this belief. The speeches of Madison, Mason, 
Pincknev, P)utler, and others from the South, as well as 



IS DAVIS A TRAITOR? 231 

of Morris, King, "Wilson, and others from the Xorth, con- 
clusively show that the Convention intended to allow the 
South the prospect of a majority in one branch of Con- 
gress. Such was the object and design of the three-fifths 
clause. Such was the reason of the Convention for ad- 
mitting a fraction of the slave population into the basis 
of representation. From this point of view, that provis- 
ion appears as reasonable and just to every thinking man, 
as from any other it seems strange, singular, anomo- 
lous. It was, as Eufus King, of Massachusetts, declared 
in the Convention, due to the South, as a constitutional 
power of defence, or protection, in the new Union. 

This "singular provision," then, about which so much has 
been said and so little known, did, according to the design 
of its authors, lie at the very foundation of the Constitu- 
tion of the United States. Xeither the large States nor 
the small States, neither the Xorth nor the South, would 
agree to enlarge the powers of the common government, 
until tltey could first see how those powers were to be dis- 
tributed among themselves as the principal parties to "the 
compact of the Constitution." Xeither the North nor the 
South would, for one moment, have dreamed of entering 
into the new Union, if it had believed that the other 
would continue to have a majority in both branches of the 
Federal Legislature. Xeither would have consented thus 
to hold its rights and interests at the mercy of the other. 
Each was, as the debates show, perfectly willing to hold 
the reins of empire and dominion over the other. But 
while each was thus perfectly willing to rule, it had some 
little objection against being ruled. It could easily trust 
itself, but not its rival, with the control of the supreme 
power, and it was, no doubt, amply prepared to bear with 
becoming fortitude any hardship or danger, which might 
result to its ally from such an arrangement in its own 
favor. Hence the absolute necessity of the compromise in 
question. On no other terms, or conditions, could the new 



232 IS DAVIS A TEAITOR? 

Union, with its vastly augmented powers, liave arisen 
between the two great sections, which were so violently 
agitated and repelled by similar electricities. That " com- 
promise," then, that " singular provision," that partial 
admission of slaves into the basis of representation, was 
introduced and enacted to adjust the balance of power 
between the Xorth and the South. It was one of the 
fundamental principles of the Constitution, without which 
" the more perfect Union " could not have been formed 
between the sections. 

The three-fifths clause or compromise, then, intended to 
give the one section, as well as the other, a defensive power 
in the new Union, was absolutely indispensable to the 
formation of that Union. Such a defensive power was^ 
indeed, deemed by a majority of the fathers of the Con- 
stitution, absolutely indispensable to the safety, freedom, 
and independence of each of the sections in the Union. 
Yet, however strange it may seem, no public man in 
America has, from that day to this, taken the pains to 
make himself acquainted with the reason and design of 
that fundamental provision of the Constitution of the 
United States ! 

The author of the " American Conflict " regards slaves 
as "human beings;" and quotes the clause in question, 
" three-fifths of all other persons " to prove that the Con- 
stitution regards them in the same light. A^^li}^, then, says 
he, were they not represented "like other human beings, 
like women and children, and other persons, ignorant, 
humble, and powerless, like themselves?" The answer is 
very easy. Although the Convention did, as their pro- 
ceedings show, adopt population on the basis of represen- 
tation; yet was the majority more bent on the possession 
of power, than on the preservation of their logical con- 
sistency. If, instead of compromising the difficulty, the 
South had persisted in pushing the principle adopted by 
the Convention to its logical conclusion; then would the 



IS DAVIS A TRAITOR? 233 

great design of that body of legislators have been spoiled, 
and all prospects of the " more perfect Union " blown 
into thin air. So much for one horn of his formidable 
dilemma. " If, on the other hand," saA^s he, " yoii con- 
sider them property — mere chattels personal, why should 
they be represented any more than ships, or houses, or 
cattle? Here is a nabob, who values his favorite high- 
bred horse at five thousand dollars, and five of his able 
bodied negroes at the same amount. Why should his 
five negroes count as three men in apportioning the rep- 
resentatives in Congress among the several States, while 
the blooded horse counts for just nothing at all ? " Here, 
again, the answer is perfectly easy. The slaves were 
not counted as property at all; and, consequently, there 
was no inconsistency in excluding horses, or other quadru- 
peds, from the basis of representation. Thus, neither the 
horn of the dilemma is quite as unanswerable as the au- 
thor imagines it to be, and utterly fails to show the ab- 
surdity of the clause in question as one of the " unsightly 
and anomolous " excrescences of the slave power. 

In reply to the two questions of his own dilemma 
the author says : " We can only answer that Slavery and 
Eeason travel different roads, and that he strives in vain 
who labors to make these roads even seem parallel." Such 
is his profound commentary on one of the most important 
clauses, one of the most indispensable provisions, of the 
Constitution of his country. He is, in the same spirit, 
pleased to speak of this provision of the Constitution, as 
if it had been hastily adopted by the Convention, " with- 
out much debate or demur; " * and that, too, just after he 
had quoted the undeniable words of one of the most cele- 
brated members of the Convention, which show that it 
had " been settled " only " after much difficulty and delib- 
eration." t Roger Sherman was right ; and Horace Greely 
was wrong. The Convention had something more to do 

* The American Conflict, p. 4G. f Ibith P- 43. 

16 



234 IS DAVIS A TRAITOR? 

than merely to " split the difference " between two hairs, 
or abstractions; they had to adjust the balance of power 
between the two great rival sections of the United States; 
a problem which lay at the very foundation of the new 
ITnion, and upon the satisfactory solution of which the 
whole superstructure was destined to depend. It is 
absurd, as well as untrue, to say that such a question was 
settled without much difficulty. It exercised, to the 
utmost, all the sagacity and wisdom of the Convention of 
1787. That wisdom is, no doubt, utter foolishness to the 
rabid rage of radical reformers; which never fails to con- 
demn constitutions and laws without even knowing, or 
caring to know, the reasons on which they are founded. 

" ,Slavery and Eeason " have, it is true, often travelled 
''^different roads." But, in the case before us, the South 
would have been glad to travel the same road with Eeason, 
and follow tlie principle of the Convention to its logical 
conclusion. But the sturdy North would not listen to 
that conclusion. Hence if the South departed from the 
road of Reason at all, it was in order to meet the hard 
demands of the Xorth, and join in the Union, which has 
proved her ruin. 

It proved her ruin; just because the balance of power, 
which the fathers intended to establish between the two 
sections, was overthrown and destroyed. That equilib- 
rium, or balance of power, was, in the opinion of the 
fathers, indispensable to the safety, freedom, and inde- 
pendence of each section in the Union; and its destruc- 
tion has illustrated and confirmed the wisdom of their 
decision. 

On this su])ject, a distinguished Nortliern writer, in 
ISGO, used the following language: 

"At the time of the adoption of the federal Constitution 
the condition of slaves was very different at the South 
from wliat it has since become. At that time there was, 
as we liave shown in a previous chapter, no large branch 



IS DAVIS A TRAITOK? S35 

of industry to engage the blacks, and their future fate 
was matter of anxiety. The progress of the cotton cul- 
ture has changed that, and the interests of millions of 
whites now depend upon the blacks. The opinions of 
statesmen of that day were formed upon existing facts; 
could they have seen fifty years into the future their 
views upon black employment would have undergone an 
entire change. The blacks were then prospectively a bur- 
den; they are now an absolute necessity. They then 
threatened American civilization; they are now its sup- 
port. "With multiplying numbers they have added to the 
national wealth. They have become the instruments of 
political agitation, while they have conferred wealth upon 
the masses. 

From the moment of the formation of the Federal 
Union there commenced a struggle for political power 
which has not ceased to be directed against the Slave 
States. The instrument of union, while it provided for 
the extinction of the slave-trade, wdiicli then formed so 
large a portion of Northern traffic, contained also a pro- 
vision for black representation in the Southern States, stip- 
ulating that that representation should not be changed 
until 1808, and thereafter only by a vote of three-fourths 
of all the States. That provision has been the ground-ivorh 
of that constant Northern aggression upon Southern inter- 
ests which has so successfully gained on the federal power 
until now it imagines the desired three-fourths is within its 
reach, when the South, with its interests, icill he at the feet 
of the abolitionists. The South has stood steadily on its de- 
fence, Init while the circle has narrowed in upon it, the 
Xorth has not ceased to clamor against Southern aggres- 
sion ! Like Jemmy Twitcher, in the farce, who, having 
robbed a passenger, loses the plunder, and exclaims, " there 
must be some dishonest person in the neighborhood !'' * * * 

The original 13 States that adopted this Constitution 
were all Slave States with the exception of Massachusetts, 



236 IS DAVIS A TRAITOR? 

which, although it then hehl no shivcs had an interest in 
continuing the slave trade, in opposition to the wishes of 
the Slave States. The struggle in the Convention in re- 
lation to the discontinuance of the slave-trade, was be- 
tween the Xew England States, that desired the traffic, 
and Virginia and Delaware that wished no more slaves, 
while those Southern States that had but a few blacks de- 
sired to import tliem without tax. On the vote Xew 
Hampshire and Massachusetts voted to continue the 
trade until 1808, and Virginia and Delaware voted " nay,'' 
or for its immediate discontinuance. 'No sooner had the 
Constitution been adopted, however, than the annexation 
of Louisiana became a necessity, in order to give an out- 
let to the sea for the produce of the West, but, notwith- 
standing the great advantage which the annexation was 
to confer upon Massachusetts, she opposed it to the point 
of threatening to dissolve the Union if it was carried 
out. That, after the great rebellion of Shay within her 
borders, was the first disunion threat, and the motive was 
fear of the political increase of Southern strength. Those 
fears were like all party pretences, short-sighted, since 
that territory has given more Free than Slave States to 
the Union. This threat of disunion was made while yet 
Massachusetts was engaged in the slave trade, that the 
State had voted to prolong to 1808. The same cry was 
renewed in respect of Florida, and again, with greater 
violence, in the case of Missouri; to be again revived in 
respect of Texas; and once more, with circumstances of 
greater atrocity in the case of Kansas. It is remarkable 
that while Free States come in without any great strug- 
gle on the part of the South, the safety of which is 
threatened by each such accession, the admission of Slave 
States is the signal of so much strife, and this resistance 
to a manifest ridit of the South is denounced as '' South- 



ern a£:f!:ression." 



The gradual abolition of slavery in the old Xorthern 



IS DAVIS A TRAITOR? 237 

States, and tlie ra^oidity with which Eastern capital, fol- 
lowing migration, has settled the Western States, has 
given a large preponderance to the free interest in the 
national councils. Of the 26 senators that sat in the first 
Congress, all represented a slave interest, more or less; 
with the States and territories now knocking for admis- 
sion, there are 72 senators, of whom 32 only represent 
the slave interest. That interest, from heing " a nnit " in 
the Senate, has sunk to a minority of four, and yet the 
majority do not cease to complain of Southern " aggres- 
sion." With this rapid decline in the Southern vote in 
the great " conservative body " of the Senate, the repre- 
sentation in the lower House has fallen to one-third. How 
long will it be before the desired three-fourths vote, for 
which a large party pant, will have been obtained, and, 
when ol)tained, what will have become of those Southern 
rights which are even now denied by party leaders to be 
any rights at all. In the last 30 3'ears 11 Free States 
have been prepared for the Union; a similar progress in 
the next 30 years and the South will have fallen into that 
constitutional minority which may deprive it of all re- 
served rights. This circle is closing rapidly in upon it, 
amid a continually rising cry of abolition, pointed by 
bloody inroads of armed men. This is called Southern 
" aggression."' * 

The balance of power was overthrown. The South 
lost, more and more, her original equality in the Union; 
and the just design of the fathers was despised and 
trampled under foot by the Northern Demos. Every cen- 
sus showed, that her power had diminished, as her dangers 
had increased ; and she no longer found herself in the ori- 
ginal Union of equal sections. On the contrary, she found 
herself in a minority, which the Southern men of 1787 
would have shunned as the plague; and threatened by a vast 
majority as cruel as death, and as inexorable as the grave 

* Soutliern Wealth and Northern Profits, p. 139-40. 



238 JS DAV]S A TRAITOK? 

This was not tlie Union of the fatliers; hut the warped, 
and perverted Union of unjust rule and domination. The 
States of Xew Enghmd, never failed to threaten a dissolu- 
tion of the Union, whenever, in their jealous imaginations, 
there seemed even a prospect tliat the balance of power 
might turn in favor of the South in only one branch of 
Congress. Yet the more this balance was actually turned 
in their favor, and the South, contrary to the design 
of the fathers, reduced to a hopeless minorit}^, the more 
imperiously they demanded her implicit submission to 
^NTorthern rule, and the more fiercely was denounced here 
every struggle to maintain her original equality and inde- 
pendence as "' Southern aggression.^^ 

From a table in the work above quoted, it appears that, 
at each succeeding census, the relative increase of the two 
sections in the House of Eepresentatives was as follows : 

Before Census. 1790. 1800. 1810. 1820, 1830. 1840. 1850. 

Xorth, 35 57 77 104 183 141 135 144 

South, 30 53 65 79 90 100 88 90 

Majority, 5 4 12 25 43 41 47 54 

Thus, in one branch of the Legislature, the Northern 
majority counting Delaw^are as a Southern State, had 
increased from a majority of five to a majority of fifty-four 
representatives. The South, as every reader of American 
history must know, never would have entered into so un- 
equal a Union with the Xorth; and the North would not 
have continued in the Union, if slie had not always 
retained the balance of power in her own hands, and in 
botli branches of Congress. 

As the Xorth had so great a majority in the House, it 
was the more important that the Soutli should, at least, 
retain her original share of power in the Senate. But 
even this, slie was not allowed to do. In order to gain 
the complete and uncontrolled ascendency in the Senate, 
as she had done in the House, the Xorth began to exclude 



IS DAVIS A TRAITOR? 239 

all slave-holding States from the Union. This she at- 
tempted in regard to Missouri, and persisted in her uncon- 
stitutional attitude, until she was defeated by the votes 
of a few Northern democrats, who sacrificed themselves to 
save the Union and their own party. After the restora- 
tion of the democratic part}^, and during its reign, the 
rights of the States were so clearly vindicated, and so 
firmly established, that few ventured to claim for Congress 
the power to exclude a State from the Union, because she 
held slaves. Hence the Eepublican party changed its 
tactics ; and endeavored to effect the same unconstitutional 
design in another way. Not daring to say, as their pre- 
decessor had done, that Congress could exclude a slave- 
holding State from the Union, they determined that no 
more such States should be formed. For this purpose, 
they resolved to exclude the South from all the territories 
of the Union; so that no addition should ever be made to 
her power, while that of the North was allowed to increase 
with still greater rapidity. The North resolved, in fact, 
that every new State formed, and admitted into the 
Union, should be an accession to her own overgrown 
power. The South might object and complain; but what 
could she do ? Was she not already in a helpless minority ? 
If we count Delaware as a Southern State, then the North, 
instead of a majority of one State in the Senate, had a 
majority of three States, or of six votes, before the first 
Southern State seceded from the Union. There were eigh- 
teen Northern, and only fifteen Southern States, represent- 
ed in that branch of Congress; which was designed to act 
as a check on the majority in the House of Representa- 
tives. Nor w^as this all. For there were, at that time, 
nearly ready to come into the Union — Kansas, Minnesota, 
Oregon, Washington, Nebraska, Utah, and New Mexico, 
which would have made the Northern majority as over- 
whelming in that body, as it was in the other branch of 
the Federal Legislature. If the tables had been turned. 



240 IS DAVIS A TRAITOR? 

if the picture had been reversed^ the North woidd have 
laughed such a Union to scorn. She could not even tol- 
erate, indeed the bare thought, or imagination, that the 
South might gain the ascendency in the Senate, in only 
one branch of the Federal Legislature. 

Thus, while the greedy North continued to grow in 
power, and in a determination to crush the South beneath 
her feet, she filled the earth with her clamors about " the 
aggressions of the slave power;" appealing to the preju- 
dices and passions of mankind in her unholy crusade 
against an unknown and despised people. The South 
simply stood on the defensive. The one struggled for 
empire, for dominion; the other for independence, for 
existence. The one struggled to preserve her original 
equality in the Union; the other to destroy that equality. 
The one directed all its efforts to uphold the balance of 
power establislied by the authors of the Constitution, and 
deemed by them the only safeguard of freedom in the 
Union; tlie otlier bent all its energies to break that balance, 
and grind its fragments to powder. 

Hence the South became extremely sensible of the dan- 
gers of her position in the Union. All hope of a ^* consti- 
tutional power of defence '' therein had been wrested from 
her grasp. That safeguard of lier freedom and inde- 
pendence, which the founders of the Eepublic deemed so 
essential to both ends of the Union, no longer existed for 
the Soutli ; and she held her rights and interests at the 
mercy of the North, as it was never intended she should 
hold them. She could see, therefore, as clearly as Profes- 
sor Cairnes, that the extinction of her freedom and inde- 
pendence was, sooner or later, her inevitable destiny in the 
Union. 1'hat dark destiny, however, she beheld with far 
other eyes than those with wdiich it was contemplated by 
the Professor of Jurisprudence. Beholding, with fanatical 
delight, the ultimate ruin of the South in the Union, he 
denounced secession as treason and rebellion; but it is to 



IS DAVIS A TRAITOR? 241 

be hoped that^ in the estimation of mankind, ft will not be 
deemed an unpardonable offence, if she was not entirely 
devoid of the natural instinct of self-preservation. 

Jefferson Davis^, in the name of the South, gave utter- 
ance to this natural instinct in the Senate of the United 
States in 1850. " The. danger/' said he, " is one of our own 
times, and it is that sectional division of the people which 
has created the necessit}^ of looking to the question of the 
balance of power, and which carries with it, when dis- 
turbed, the danger of disunion." Such was the treason of 
Jefferson Davis in 1850 ! But far bolder language had been 
used by Xorthern Statesmen, and by ISTorthern Legisla- 
tures, in behalf of the Xorth; not because the North was 
in a present or real, but only because she was in a future 
and purely imaginary, minority. The treason of the weak 
is the patriotism of the strong. 

Tlie Belatire Decline of the SoniJt in iJic New Union. 

It is a remarkable fact, tliat from the first settlement of 
the country, the South continued to increase in population 
and wealth more rapidly than the N'orth, till the new 
Union was established. In the Convention of 1787, it was, 
on all sides, conceded that the South surpassed the North 
both in population and in wealth. But from that event, 
from the inauguration of the " more perfect Union," her 
relative decline began. This fact has always been ascribed, 
by the enemies of the South, to the malign influence of the 
institution of slavery. But slavery existed before the new 
Union without producing any such effect. Hence, how- 
ever great the evil influence of slavery may have been, it 
was not sufficient to counteract the great natural advan- 
tages of the South, until the new Union came to its aid. 
The action of the Federal Government was, in the opinion 
of many impartial juflges, the great cause of this relative 
decline of the South, in spite of the resources which nature, 



242 IS DAVIS A TRAITOR? 

with a large and liberal liaud^ had lavished on her teeming 
soil and beneficent climate. 

The influence of this cause is well explained by a devoted 
friend to the Union. Eice and indigo were, says he, the 
great staples which, under the protection of the British 
Crown, had been the sources of the superior wealth of the 
South before the Eevolution. But under the protection, 
or rather under the contemptuous neglect, of the Federal 
Government, these great interests languished, and these 
great staples were finally crushed out of the markets of 
the world by the hostile legislation of foreign powers. 
The decline of the South would have been as hopeless as 
it Avas rapid, if the cultivation of cotton, in consequence 
of several well known improvements and inventions, had 
not becoDie sufficiently remunerative to stand alone with- 
out the aid or support of the Federal Government. This 
great staple and source of wealth caused the South to 
revive. It not only arrested the sort of ^' galloping con- 
sumption " under which she was fast sinking into compar- 
ative insignificance, but it also restored her to something 
of the fulness and the glow of her former prosperity. But 
the Xorth fixed her eagle eye on the rising prosperity of 
the South, and soon planted the talons of her tariffs deep 
in its very vitals. 

" The tariff question," says Mr. Ludlow, '' may be easily 
disposed of." * He certainly disposes of it with very great 
ease. A few prudently selected, and carefully trimmed, 
extracts from Mr. Benton, are among the facile means he 
employs for the purpose. Let us, then, hear ^Ir. Benton 
himself, not in garbled extracts merely, but in the full 
round utterance of great historic truths. Mr. B. was no 
friend to the institution of slavery, or to its extension. In 
regard to this last most exciting question, he was decidedly 
with the Xorth. But yet, unlike Mr. L. and his school, 
Mr. Benton could both see and feel that something else 

* History, p. 305. 



IS DAVIS A TRAITOR? 243 

beside slavery exerted an evil influence in tlie United 
States of America. Accordingly^ in 1S2S, he uttered the 
following words in the Senate : " I feel for the sad changes 
which have taken place in the South during the last fifty 
years. Before the Revolution^ it was the seat of wealth 
as well as of hospitality. Money and all it commanded 
abounded there. But how now? all this is reversed. 
Wealth has fled from the South and settled in the regions 
Xorth of the Potomac ; and this in the face of the fact that 
the South in four staples alone has exported produce since 
the Eevolution, to the value of eight hundred millions of 
dollars: and the Xorth has exported comparatively noth- 
ing. Such an export would indicate unparalled wealth, 
but what is the fact? In the place of weath a universal 
pressure for money was felt — not enough for current 
expenses — the price of all property down — the country 
drooping and languishing — towns and cities deca3dng — 
and the frugal habits of the people pushed to the verge of 
universal self-denial for the preservation of their family 
estates. Such a result is a strange and wonderful phe- 
nomenon. It calls upon statesmen to enquire into the 
cause." How did slavery produce this wonderful trans- 
formation? How did slavery work all this ruin? Slavery, 
it is well known, existed before the Eevolution as well as 
afterward; and. accompanied, the South in the palmiest 
days of her prosperity, as well as in the darkest and most 
dismal hour of her adversity. Hence it was not, and 
could not have been, the one cause of so great and so sud- 
den a change. And besides, instead of having ceased to 
produce, the fair and fruitful South continued to pour 
forth, in greater abundance than ever, the broad streams 
of national prosperity and wealth. Hence she was im- 
poverished, not because the fountains of her former supply 
had been dried up, or even diminished in volume, but 
because the great streams flowing from them did not 
return into her own bosom. Into what region of the 
earth, then, did these streams empty themselves? 



244 IS DAVIS A TUAITOR? 

Mr. Benton answers this question I and though his an- 
swer is diametrically opposed to the views of the Bright 
and Cobden school, he is the great authority whom Mr. 
Ludlow himself has brought upon the stand. Under 
" Federal legislation/' says Mr. Benton, " the exports of 

the South have been the basis of the Federal revenue 

Virginia, the two Carolinas, and Georgia, may be said to 
defray three-fourths of the annual expense of supporting 
the Federal Government; and of this great sum annually 
furnished by them, nothing or next to nothing is returned 
to them in the shape of Government expenditures. That 
expenditure flows in an opposite direction — it flows north- 
wardly in one uniform, uninterrupted, and perennial 
stream. This is the reason why ivealth disappears from the 
South and rises up in the North. Federal legislation does 
all this. It does it by the simple process of eternally tak- 
ing from the South and returning nothing to it. If it re- 
turned to the South the whole or even a good part of what 
it exacted, the four States south of the Potomac might 
stand the action of the system, but the South must be ex- 
hausted of its money and property by a course of legisla- 
tion which is forever taking away and never returning any- 
thing. Every new taritf increases the force of this action. 
Ko tariff has ever yet included Virginia, the two Carolinas, 
and Georgia, cxcej^t to increase the burdens imposed upon 
them." 

Xor was Mr. Benton alone in this opinion. The politi- 
cal economists of the North, such as Carey, Elliot, Ket- 
tell, and others, who had studied the sources of national 
wealth in America, gave precisely the same explanation 
of the sudden and wonderful disappearance of wealth from 
the South. The Xorth might easily satisfy its own con- 
science, by making slavery the scape-goat for its sins; but 
thinking men, even at the Nortli, were not so readily 
deceived. Hence, in an able work entitled " Southern 
Wealth and Xorthern Profits," the author does not hesi- 



IS DAVIS A TRAITOR? 245 

tate to tell the people of his own section^ that it was gross 
injustice, if not hypocrisy, to be always growing rich on 
the iDrofits of slaYe-lal)or; and, at the same time, to be 
eternally taunting and insulting the South on acount of 
slavery. Thougli it was bitterly denounced as " the sum of 
all villainies;" it was, nevertheless, the principal factor in 
N'orthern wealth. 

In like manner. Professor Elliott, though a Xorthern 
man, and an enemy to slavery; yet, as a political econo- 
mist, and teacher of the science in a Xorthern college, lie 
denied that it had impoverished the South. On the con- 
trar}^, he has, in a work styled " Cotton is King," shown 
that slave-labor has been one of the great sources of 
Xorthern wealth. Is it any wonder, then, that the think- 
ing men of the South should have entertained the same 
opinion? Is it any wonder,_ that they should have agreed 
with Benton, and Kettell, and Elliott, and other Xorthern 
writers, that it was legislation, and not slavery, which had 
impoverished the South? It is certain, that such was the 
conclusion of the thinking men of the South, in view of 
her sad and frightfully altered condition. 

" Such a result," says Mr. Benton, " is a strange and 
wonderful plienomenon. It calls upon statesmen to enquire 
into the cause ; and if they enquire upon the theatre of this 
strange metamorphosis they will receive one imiversal 
answer from all ranks and ages, that it is Federal legislation 
u'liich has tvorl-ed this ruin." If, under such circum- 
stances or belief, the South has been satisfied with the 
action of the Federal Governuient, her people must have 
been the greatest of all simpletons, or the most patient of all 
saints. They were neither ; they were merely human beings, 
who had some little regard for their own interests, as well 
as for those of their neighbors. Hence, the tariffs of the 
United States, by wliich one portion of the people was 
impoverislied for the benefit of another portion of the peo- 
ple, left in the minds of tlie most influential men of the 



240 IS DAVIS A TRAITOR? 

South a deep and abiding sense of the injustice of Xorth- 
ern legislation. 

"What less could have been anticipated? All majorities 
are, in fact, unjust, despotic and oppressive. Hence, in 
the opinion of the Convention of 1T87, if either section 
should have the majority in both branches of Congress, it 
would oppress the other. As this opinion Avas founded on 
the experience of the past, so it was afterward confirmed 
by the history of the future. Indeed, if the North, with 
a majority in both branches of Congress, had not op- 
pressed the South, it would have been unlike every other 
Unchecked power in the history of the world. 

There have been, no doubt, lets, hindrances, and pauses 
in this onward march of the triumphant power of the 
Xortli. But it has always had its eye fixed on one object 
of supreme desire, namely, on absolute dominion and 
control. It had already become absolutely overwhelming 
in one brancli of Congress, witli the certainty of soon be- 
coming equally overwhelming in the other. There was 
not a member of the Convention of 1T87, who, if his own 
section had been in the minoritv, would not have shrunk 
from such a Union with horror. He must indeed have 
been profoundly ignorant of the sentiments of the fathers, 
as well as of the character of all interested majorities, who, 
could have supposed, for a moment, that the South might 
have been free, or safe, or liappy in such a Union. AAHiat ! 
is tliat freedom wlnV-li is lield at the mercy of another? 
Is that safety whicli depends on the will of an inter- 
ested majority? 

"Wliat was to liave Ijeen expected from such a majority, 
is well described in the speeches of Jolm C. Callioun; in the 
" Essay on Liberty " by John Stuart jMill ; and in the cel- 
ebrated work of De Tocqueville on '^ Democracy in Amer- 
ica." Botli De Tocqueville and Mill are advocates of demo- 
cracy : and yet, if ])ossible, tliey draw more frightful ]uc- 
tiires f)f tlic tyranny of an uncliecked majority, tlian has 



IS DAVIS A traitor:-' 247 

John C. Calhoun himself. " The majority in that countr3\" 
[the United States,] sa3's M. De Tocqueville, "exercise a 
prodigious actual authority, and a moral influence which 
is scarcely less preponderant; no obstacles exist which can 
impede, or so much as retard its progress, or which can 
induce it to heed the complaints of those whom it crushes 
upon its path." * . How cold, then, and heartless, such a 
majority ! Cruel as death, and inexorable as the grave, it 
turns a deaf ear to the outcries of those whom it crushes 
upon its path I 

But if such was the unprejudiced conclusion of a great 
philosphic observer in 1833, what was to have been ex- 
pected from a sectional majority, growing continually in 
greatness, in power, and in hatred of the sectional minor- 
ity? Had the South no reason for her fears? If not, 
then De Tocqueville, and Mill, and C^alhoun, were the veri- 
est simpletons that ever lived. If not, then the founders of 
the l^epublic had all read the history of their own times 
wrong, and wrote libels on the character of unshackled 
majorities ? 

M. De Tocqueville has told the exact truth. "This 
state of things," said he, in 1833, " is fatal in itself, and 

dangerous for the future If the free institutions 

of America are ever destroyed, that event may be attrib- 
uted to the unlimited authority of the majority 

Anarchy will then be the result, but it will have been 
brought about by despotism." f 

Tlic Formation of a Faction. 

There is a vast difference between a political party and 
a faction. The one is legitimate, hcaltliful, and conserva- 
tive; the other is the fatal disease of which nearly all 
republics have perished. The one is united by principles, 
or designs, which persons in any part of the Republic may 
freely adopt and cherish; the other is animated by a 

* Democracy in America, vol. i., p. 301. t Ibid, p. 317. 



248 IS DAVIS A TRAITOR? 

" common interest^ or passion/'^ wliicli is hostile to other 
interests of the same community. Xow, the great object 
of the legislation of 1787;, was to provide a remedy for the 
fatal effects of faction. 

"Among the numerous advantages/'' says The Federal- 
ist, "promised by a well constructed union, none deserves 
to be more accurately developed than its tendency to 
break and control the violence of faction. The friend of 
popular governments, never finds himself so much alarmed 
for their character and fate, as when he contemplates 
their propensity to this dangerous vice. He will not fail, 
therefore, to set a due value on any plan which, without 
violating the principles to which he is attached, provides 
a proper cure for it." * Mr. Madison, the author of the 
above words, used still more impressive language on the 
same subject, in the Yirgina Convention of 1788. " On a 
candid examination of histor}^" he there said, " we shall 
find that turbulence, violence, and abuse of power, hij the 
majority trampling on the rights of the minority, have pro- 
duced factions and commotions, luhicli, in republics, have 
more frequently than any other cause, produced despotism. 
If ive go over the ivhole history of ancient and modern re- 
puhlics, IV e shall find tlieir destruction to have generally re- 
suited from those causes. If we coxsider the peculiar 

SITUATIOX OF THE UxiTED STATES, AND WHAT ARE THE 
SOURCES OF THAT DIVERSITY OF SEXTIMENT AVIIICH PER- 
VADES ITS IXHABITAXTS, WE SHALL FIXD GREATER DAXGER TO 
FEAR, THAT THE SAME CAUSES MAY TERMINATE HERE, IX 
THE SAIHE FATAL EFFECTS, AVIIICH THEY PRODUCED IX 

THOSE Republics." \ Here, then, was the rock on which 
the new Republic was in the greatest danger of being 
dashed to pieces. Hence, Mr Madison well adds : " This 
danger ought to be wisely guarded against." Otherwise, the 
great Republic must inevitably split on the rock of faction, 
and go to tlie bottom, with the republics of the past. 
*No. X. rElHot's Debates, vol .~i i i., p. 109^ 



IS DAVIS A TRAITOR? 249 

It was, therefore, the great object of the legislation of 
1787, to guard the new Eepublic against the rise, or form- 
ation, of a faction. This, as we have already seen, is well 
stated in the Federalist, as follows : " When a majority is 
included in a faction, the form of popular government, en- 
ables it to sacrifice to its ruling passion, or interest, both the 
public good and the rights of other citizens. To secure 
the public good, and' private rights, against the danger of 
such a faction, and at the same time to preserve the spirit 
and the form of a popular government, is the great object 
to which our inquiries are directed. Let me add, that it 
is the great desideratum, by ivhich alone this form of gov- 
ernment can be rescued from the opprobrium under which 
it has so long labored, and be recommended to the esteem 
and adoption of manlcind." * 

By what means, then, did the legislators of 1787, hope 
to remedy the evils of faction; to subdue, if not to eradi- 
cate, that fatal disease of republics ? Mr. Madison replies : 
'^ Perhaps, in the progress of this discussion, it will appear 
that the only possible remedy for those evils and means of 
protecting the principles of Eepublicanism, will be found 
in that very system which is now exclaimed against as the 
parent of depotism." f That is, in the new Union of 1787. 

I^ow where, and how, did the new Union provide "the 
only possible remedy " against the evils of faction ? Ac- 
cording to the view of Mr. Madison, and of the majority 
of the Convention of ^87, neither the North nor the South 
would be able to form itself into a dangerous faction; be- 
cause, as they said, each section will have a majority in 
one branch of Congress; and thereby hold a constitutional 
check on the power of the other. But this remedy, as 
every one knows, proved a total failure. 

The other great remedy against the evils of faction, 
which, as the legislators of 1787 supposed, existed in the 
new system; would be found in the great extent of the 
Union, in the great number and diversity of its interests, 

* No. X. t Elliot's Debates, vol. iii., p. 109. 



250 IS DAVIS A TRAITOR? 

which would prevent " any one party being able to out- 
number and oppress the rest." * This remedy against fac- 
tion is repeatedly urged by Mr. Madison. Thus, he speaks 
of the new Union " as the proper antidote for the diseases 
of faction, which have proved fatal to other popular gov- 
ernments, and of which alarming symptoms have been 
betrayed by our own ;" f because " the influence of fac- 
tious leaders," who " may kindle a flame within their par- 
ticular States,". . ."will be unable to spread a great confla- 
gration through the other States." X Now this great 
remedy also proved a failure. Factious leaders did kindle 
a conflagration through all the Northern States; and the 
great North, animated by one " passion, or interest," did 
form itself into the most terrible faction the world has 
ever seen, and point all the lightnings of its wrath at the 
devoted South. 

The fact is not denied by many of the great champions 
of the Northern power. On the contrary, it was made a 
ground of exultaion and boasting, by some of her most 
eloquent orators. Thus, it was said " no man has a right 
to be surprised at this state of things. It is just what we 
have attempted to bring about. It is the first sectional 
party ever organized in this country. It does not Tcnow its 
own face, and calls itself national; hut it is not national — 
it is sectional. The REruBLiCAN party is a party of 
THE North pledged against the South." § Nothing 
could have been more true. Thus, under and in spite of the 
Constitution designed for the protection of all sections and 
of all interests alike, the North did form itself into a fac- 
tion, and seize all the powers of the Federal Government. 
This may have been rare sport to the leaders of the faction ; 
it was the death-knell of the Republic. It was, — the 
founders of the ITnion themselves being the judges, — the 
fall of the Republic, and the rise of a depotism. 

* The Federalist, No. xiv. t Ibid. $ Ibid, No. x. 

§ Wondcll Phillips. 



IS DAVIS A TRAITOR? 251 

This faction, it is said, did " not know its own face." 
Perhaps it was a little ashamed of its own face. It is cer- 
tain, that it was very loud in its professions that all its 
designs were national and constitutional; even while it 
avowed the purpose to "use all constitutional means to 
put an end to the institution of slavery." But no such 
means were known to the Constitution; which, as the 
leaders of that faction perfectly well knew, was estab- 
lished and ordained to protect all the institutions of the 
South, as well as of the North. Use all constitutional 
means indeed ! ^Yhj, the very existence of such a faction, 
was an outrageous violation of the whole spirit and design 
of the Constitution of 1787. It was, in one word, the last 
throe of the mighty Republic, as it succumbed to the fatal 
disease of which so many republics had previously per- 
ished. Conceived in profound contempt of the wisdom of 
Washington, who, in his Farewell Address, had so sol- 
emnly warned his countrymen against the dangers of a 
sectional party, or faction; it just marched right onward 
in the light of its own eyes over broken constitutions, and 
laws and oaths ; trampling on all alike with imperial scorn 
and proud disdain. 

The South was advised to " wait for some overt act." 
But if one finds himself in company with a strong man 
armed, who is both able and willing to crush him, is it 
wise to " wait for the overt act," or to withdraw from his 
society as soon as possible? If the strong man armed 
should make his withdrawal the occasion of his ruin ; that 
would only prove, that the companionship was neither safe, 
nor desirable. 

The South, it is true, did not better her condition by 
her withdrawal from the North. But is not all history 
replete with similar instances of failure in the grand 
struggle for freedom, safety, and independence? In the 
golden words of the Federalist : " Justice is the end of 
government. It is the end of civil society. It ever has 



252 IS DAVIS A TRAITOR? 

been, and it ever will be pursued^ until it be obtained, or 
until liberty be lost in the pursuit." * It was thus, in 
the pursuit of justice, that the South lost her liberty. If 
she had not engaged in the pursuit, she would have de- 
served to lose her liberty. 

The South, it was said, had nearly always been in the 
possession of the Government; and it was right, there- 
fore, that the Xorth should take possession of it in her 
turn. But this is one of the lying fictions of the North. 
The South never had possession of the Government at 
all. All the great powers of the Government are, for the 
most part, lodged in the Congress of the United States, in 
neither branch of which did the South ever have a major- 
ity. She was, indeed, when she entered into the new 
Union, promised a majority in one branch of Congress; 
but that promise, like an apple of Sodom, soon turned to 
dust and ashes in her hands. 

jSTor had the South as such ever had a President of the 
United States. The great democratic party generally 
selected its President from the South. But this did not 
make them sectional Presidents. Xeither AVashington, 
nor Jefferson, nor Madison; nor Monroe, nor Jackson, nor 
Polk, was a sectional President. On the contrary, so lit- 
tle was tliere .of a sectional nature in their characters, or 
designs, that each and every one of them was elected to 
the Presidency of the United States, by a large majority 
of the Northern votes. Mr. Lincoln, on the other hand, 
who was a sectional candidate, and put forth on purely 
sectional grounds, did not receive a single Southern vote. 
He was, then, the candidate not of a legitimate party, but 
of the great unconstitutional and anti-republican faction 
of 1861 ; that is, the candidate of " the party of the North 
pledged against the South." 

The North, with a majority in both houses of Congress, 
was perfectly protected against every possibly danger of 

* No. li. 



IS DAVIS A TRAITOR? 253 

oppression. If, then, a statesman from the South had al- 
ways filled the office of President; still her situation 
would have been far more precarious and unprotected 
than that of the Xorth. The President could introduce 
no bill into Congress; he could only veto those which he 
might deem unjust and oppressive. Surely, a most feeble 
and uncertain protection to the South; since no man 
stood the least chance for the Presidency, who was not 
known to favor the wishes and the interests of the 
mighty Xorth. The North, then, in possession of both 
branches of Congress, and the dazzling prize of the Presi- 
dency to influence the leading politicians of the South, 
was sufficiently secure in the Union; even if all the Presi- 
dents had come from the South. But all this did not sat- 
isfy the Xorth. On the false plea that the South had 
nearly always been in possession of the Government; she 
determined to take possession of all its departments, the 
supreme Executive, as well as both branches of the Fed- 
eral Legislature. Xor is this all. She determined to take 
and to keep possession of them all in the name of the 
North, alleging that the South had enjoyed them all long 
enough; and to wield them all by the terrible faction of 
" the North pledged against the South.^' Nor was this all. 
The great leader, or the great tool, of this faction, declar- 
ed that he was not bound by the decisions of the Supreme 
Court of the United States; that he would enforce the 
Constitution as lie understood it, and not as it was under- 
stood by that high judicial tribunal. Indeed, this mighty 
faction was got up and organized in direct opposition to, and 
in open contempt of the decisions of the Supreme Court 
of the United States; both in the Dred Scott case, and in 
the case of Prigg vs. the Commonwealth of Pennsylvania. 
Its own will was its only law. 

It arose, like some monstrous abortion of night and 
darkness, from the bottomless depths of a factious con- 
tem])t for all law and all authority. The decision of the 



254 IS DAVIS A TRAITOR? 

Supreme Court in the case of Prigg, which authorizes 
the master to seize his fugitive slave without process in any- 
State of the Union; was the first object of attack by the 
great leaders of this faction. The Court was denounced 
as having been corrupted by pro-slavery sentiments; 
though this very opinion was delivered by a N"orthern 
abolitionist; by Mr. Justice Story himself. Mr. Justice 
Story could, as we have seen, go great lengths in his ad- 
vocacy of the Northern cause; but yet, as a Judge of the 
Supreme Court of the United States, he could not decide 
in direct and open violation of his oath of office. This 
instance of his integrity, in which other Xorthern Judges 
concurred, brought down the indignation and contempt 
of the great leaders of the Republican party upon the 
Court, whose opinion he had delivered. It was then 
threatened by those factious leaders, that the Supreme 
Court of the United States should be reorganized, and 
made to conform to the wishes and sentiments of the 
North; a purpose which was sure of its fulfilment after 
the election of Mr. Lincoln, and which would have capped 
the climax of the lawless designs of the Northern faction 
" pledged against the South." 

Mr. Madison, " the father of the Constitution," believed 
that such a faction would never arise in the new Union. 
But he never doubted, for a moment, that if it should arise 
therein, this would prove that the Federal Government 
had failed to answer the great end of his creation. For, 
as we have seen, it was, in his own words, the great object 
of that Government, "to secure the public good, and pri- 
vate rights against the danger of such a faction ; " by pro- 
viding against the possibility of its appearance in the 
bosom of the Republic. This is the great desideratum, 
which, according to the legislators of 1787, is necessary 
to remove " the opprobrium under which that form of Gov- 
ernment has so long labored," and "to recommend it to 
the esteem nnd adoption of mankind : " and which they 



IS DAVIS A TKAITOR? 255 

supposed had been supplied by their legislation. But 
their remedies were too weak. Their practice was not suf- 
ficiently heroic. Hence the fatal disease of republics, the 
rise of faction, was not only engendered, but developed 
into a degree of frightful malignity, which is without a 
parallel in the history of the world. The design was good ; 
but the execution defective. The fathers, in one word, 
did not begin to foresee the weakness, the folly, the mad- 
ness, and the wickedness of their descendants. Hence, 
their sublime attempt to " establish justice, ensure domes- 
tic tranquility, promote the general welfare, and secure 
the blessings of liberty to their posterity ; " proved an 
awful failure. Indeed, if they could only have witnessed 
the gigantic and terrific faction of 1861, they would have 
pronounced their own '^ grand experiment " a disastrous 
failure. It was so regarded by the South; and, for that 
reason, the South wished to make an experiment for herself. 
But, unfortunately, she was already in the horrible clutches 
of a relentless and a remorseless faction. 

Factions have no heart, no conscience, no reason, no 
consistency, no shame. Would you reason with such a 
remorseless monster ? You might just as well read the riot 
act to a thunder storm. AVould you appease its wrath? 
Would you soothe its rampant and raging ferocity? 
Would you appeal to all the tender mercies of our holy 
religion? You might just as well sing a lullaby to the 
everlasting roarings of the Pit. The South did not enter 
into the " new Union " to be governed by any such fac- 
tion. She entered into the new Union, on the contrary, in 
order to secure her freedom, her independence, her happi- 
ness, her glory; and she lost them all — except her glory. 

Even Mr. Madisqn, with all his devotion to the great 
work of his own hands, never became so blind an idolater 
as to resemble that epitome of meanness and climax of 
servility, — " an unconditional Union-man." On the con- 
trary, still breathing the spirit of a freeman, he said : *^Vere 



25G IS DAVIS A TRAITOR? 

the plan of the Convention adverse to the public happi- 
ness, my voice would be, Beject the plan. Were the 
Union itself inconsistent with the public happiness, it 
would be. Abolish the Fxiox." * Even as late as 1830, 
he declared, that " it still remains to be seen whether the 
Union will answer the ends of its existence or otherwise." 
If he had lived till 1861, he would have seen that the 
Union, having failed to prevent the rise and reign of fac- 
tion, had not answered "the great object " of its creation; 
and, consequently, no longer deserved to exist. Hence, 
in 1861, he would either have unveiled the right of seces- 
sion, or else he would have belied all the great principles, 
and sentiments, and designs of his life. 

Other Causes of Recession. 

The foregoing ground or causes of secession are, it 
seems to me, amply sufficient to justify the South in the 
exercise of a constitutional right; for which she was 
amenable to no tribunal on earth, except to the moral sen- 
timents of mankind. But there are still other and power- 
ful causes of secession; which it is unnecessary to discuss 
in the present work. All the grounds of secession, includ- 
ing those above considered, may be stated as follows : 

First, the destruction of the balance of power, which 
was originally established between the Xorth and the 
South; and which was deemed by the authors of the Con- 
stitution to be essential to the freedom, safety, and happi- 
ness of those sections of the Union. 

Secondly, the sectional legislation, by which the original 
poverty of the Xorth was exchanged for the wealth of the 
South ; contrary to the great design of the Constitution, 
which was to establish the welfare of all sections alike, 
and not the welfare of one section at the expense of 
another. 

Thirdly, the formation of a faction, or " the party of the 

* The Federalist, No. xlv. 



IS DAVIS A TRAITOR? 257 

North pledged against the South ; " in direct and open vio- 
lation of the whole spirit and design of the new Union; 
involving a failure of the great ends for which the Eepub- 
lic was ordained. 

Fourthly, the utter subversion and contemptuous disre- 
gard of all the checks of the Constitution, instituted and 
designed by its authors for the protection of the minority 
against the majority: and the lawless reign of the North- 
ern Demos. 

Fifthty, the unjust treatment of the slavery question, 
by which the compacts of the Constitution made by the 
North in favor of th6 South, were grossly violated by her; 
while, at the same time, she insisted on the observance of 
all the compacts made by the South in her own favor. 

Sixthl}^, the sophistry and hypocrisy of the North, by 
which she attempted to justify her injustice and oppression 
of the South. 

Seventhlv, the horrible abuse and slander, heaped on 
the South, by the writers of the North; in consequence of 
which she became the most despised people on the face of 
the globe; whose presence her proud ally felt to be a con- 
tamination and a disgrace. 

Eighthly, the contemptuous denial of the right of seces- 
sion ; the false statements, and the 'false logic by which 
that right was concealed from the people of the North; 
and the threats of extermination in case the South should 
dare to exercise that right. 

These, it is believed, are the principal causes by which 
the last hope of freedom for the South in the Union was 
extinguished; and, consequenth^, she determined to withr 
draw from the Union. Bravely and boldly did she strike 
for Liberty ; and, if she fell, it was because, as the London 
Thnes said, " she had to fisfht the world." 



C H A P T E R X X. 

The Legislators of 1787 as Polifieal Prophets. 

" Every particular interest/^ said Mr. Madison, in the 
Convention of 1787, " whether in any class of citizens, or 
any description of States, ought to be secured as far as 
possible. Wherever there is danger of attack, there ought 
to be given a constitutional power of defence. But he 
contended that the States were divided into different 
interests, not by their difference of size, but from other cir- 
cumstances; the most material of which resulted partly 
from climate, but principally from the effects of their hav- 
ing or not having slaves. These two causes concurred in 
forming the great division of interests in the United 
States. It did not lie between the large and small States. 
It lay between the Northern and Southern; and if any 

DEFENSIVE TOWER ^VERE NECESSARY, IT OUGHT TO BE MUTU- 
ALLY GIVEN TO THESE TWO INTERESTS." * In this opinion 
of the leading member from Virginia, tlie leading member 
from Massachusetts fully concurred. For Mr. King " was 
fully convinced that the question concerning a difference 
of interest did not lie where it had been liitherto discussed, 
between the great and the small States, but between the 
Southern and the Eastern. For this reason he had been 
willing to yic'hl something in the proportion of represen- 
tation, for the security of the Southern." f That is, for 
the protection of the Southern interest, he had, as we have 
seen, been willing to vote for the fractional representation 
of slaves. Such was, indeed, the opinion of the Convention. 
* The Madison Papers, p. 1O06. t Ibid, p. 1057. 

[2oS] 



IS DAVIS A TRAITOR? ' 259^ 

But while the legislators of 1787 agreed in this opinion, 
they looked into the future with very different eyes. 
Considered as political prophets, they may, in fact, be 
divided into three classes. 

At the head of the first class, there stands James Madi- 
son, " the father of the Constitution." Seeing, as he did, 
that the great difficulty before the Convention was to ad- 
just the antagonism between the N'orth and the South, 
he must have known that the perplexity of the new Union 
would depend on the manner in which this difficulty 
should be settled by their labors. Just before the meeting 
of the Convention, indeed, -this great antagonism had 
given birth to a tremendous conflict between the North 
and South, by which the Union was shaken to its founda- 
tions. Hence, Mr. Madison had good reason to fear the 
violence of this antagonism for the future ; and he did fear 
it. For he tells us, that there ought to be given a con- 
stitutional power of defence to each of these sections; 
so that neither could take advantage of the other. 

He hoped, he fancied, he predicted that this had been 
done. The South, he said, would soon have a majority in 
the House of Eepresentatives, in consequence of the rapid 
increase in her population ; by which she will hold a check 
on the power of the N"orth. But this adjustment of the 
great difficulty in question rested on the unstable and 
fluctuating basis of population. It soon proved to be a 
foundation of sand. The hope and the prediction of Mr. 
Madison soon appeared to have been a delusion and a 
dream. He staked the freedom, the safety, and the happi- 
ness of the South, on the happening of a future event, 
which never came to pass. 

Indeed, he did not urge his plan for the adjustment of 
the formidable antagonism in question; because, as he 
said, it suggested a difficulty which was too apt to arise 
of itself. It was, therefore, never adjusted at all, on any 



200 IS DAVIS A TKAITOR? 

solid foundation, or secure principle; and, consequently, it 
did continue to arise of itself, and disturb the new Union 
with convulsions, from the beginning of its career to the 
grand explosion of 1861. 

Mr. Madison always feared the effects of this great and 
imperfectly adjusted antagonism between the North and 
the South. It seems, indeed, as if he wished to hide it from 
his own eyes, as well as from those of the people. It is a 
very remarkable fact that although in the secret Conven- 
tion of IT 87, he pronounced the antagonism between the 
Xorthern and the Southern States the greatest of all the 
difficulties they had to deal with; yet when, in The Fed- 
eralist, he enumerated the difficulties the Convention had 
to encounter, no allusion whatever is made to this stupen- 
dous one. He seems to have imagined, that since it is so 
apt to arise of itself, the less that is said about it the bet- 
ter. This would, no doubt, have been very wise and 
prudent, if a great danger might be remedied by simply 
closing one's eyes upon its existence. 

Xothing more easily disturbed his patience, than any 
allusion to the great danger created by the fearful antago- 
nism in question. In The Federalist, — how unlike his 
usual style ! — he j)ours forth the following strain of lachry- 
mose philanthropy or patriotism : " Hearken not to the 
unnatural voice, which tells you that the people of Amer- 
ica, knit together as they are by so many chords of affec- 
tion, can no longer live together as members of the same 
family; can no longer continue mutual guardians of their 

mutual happiness Xo, my countrymen, shut your 

ears against this unhallowed language. Shut your hearts 
against the poison which it conve3^s. The kindred blood 
which flows in the veins of American citizens, the mingled 
blood which they have shed in the defence of their sacred 
rights, consecrate their union, and excite horror at the 
idea of their becoming aliens, rivals, enemies." * 

* No. xiv. 



IS DAVIS A TRAITOR? 261 

Yet, in spite of all this, Mr. Madison himself must have 
had serious misgivings with respect to his beautiful dream 
of a perpetual peace. For he knew, as we have seen, that 
there w^as a danger of a collision between the ^orth and 
the South. It is certain, that the voice which he pro- 
nounced unnatural, was the voice of truth. For Ameri- 
can citizens did become aliens, rivals, enemies; and min- 
gled their blood far more freely and fearfully than they 
ever had done in the defence of their common rights. But 
Mr. Madison knew, that in order to secure the adoption 
of the new Union, it would be necessary to persuade the 
people, that the very first condition of such a Union would 
always obtain ; namely, " a sufficient amount of sympathy 
among its populations." Hence, perhaps, his dream of 
peace was not all a dream, but partly rhetoric. 

The second class of prophets seems to have been with- 
out a head. Indeed it may, perhaps, be doubted, whether 
they spoke as prophets, or as diplomatists. It is certain, 
that they encouraged the notion of Mr. Madison and other 
Southern legislators, that the South would certainly have 
a majority in the House of Representatives. Several of 
the most influential of the Northern legislators seemed 
quite confident that such would be the good fortune of the 
South; and none more so than Mr. Gouverneur Morris. 
But were they always sincere in that belief? Or did they 
sometimes flatter the false hopes of the South, in order to 
be able to drive a better bargain with her? Xo finite 
mind can, perhaps, answer these questions ; or tell whether 
the legislators in question always spoke as prophets, or 
sometimes as diplomatists. It is certain, that the expec- 
tation held out to the South, that she would be able to 
control one branch of Congress, Avas the promise, the 
prospect, the bait, by which she was entrapped into the 
new Union; into that tremendous dead-fall, by which, in 
1861, she was crushed to the earth. Patrick Henry stood 
at the head of the third and last class of prophets. 



262 IS DAVIS A TRAITOR? 

Xo man ever more clearly foresaw, or more confidently 
predicted, the future, than did Patrick Henry the calami- 
ties which have fallen on his beloved Virginia. With some 
of the passages from this class of prophets, I shall con- 
clude this little book. 

General Pinckney of South Carolina, declared, that " if 
they [the Southern States,] are to form so considerable a 
minority, and the regulation of trade is to be given to the 
General Government, they will be nothing more than over- 
seers for the Northern States." * 

In like manner, Mr. Williamson, of North Carolina, 
said : " The Southern interest must be extremely endan- 
gered by the present arrangement. The Northern States 
are to hare a majority in the first instance, with the means 
of perpetuating it.'^ f 

George Mason said : " He went on a principle often ad- 
vanced, and in which he concurred, that a majority, when 
interested, would oppress the minority. This maxim," 
[than which none is more just,] " had been verified in the 
Legislature of Virginia. If we compare the States in this 
point of view, the eight Northern States have an interest 
different from the five Southern States; and have, in one 
branch of the Legislature, thirty-six votes against 29, and 
in the other in the proportion of eight to three. The 
Southern States had therefore grounds for their suspi- 
cions.":|: 

Mr. Henry said: "But I am sure, that the dangers of 
this system are real, when those who have no similar inter- 
ests with the people of this country, \i. e. Virginia and the 
South,] are to legislate for us — when our dearest interests 
are to be left in the hands of those whose advantage it 
will be to infringe them." § 

In the same Convention, Mr. Grayson, after declaring 
that it was a struggle between the North and the South 

* Madison Papers, p. 1058. t Ibid, p. 1058. % Ibid, p. 1387. 
§ Elliot's Dfl.ates, vol. iii.. p. 289. 



IS DAVIS A TRAITOR? 263 

for empire, proceeded to say, "Are not all defects and 
corruptions founded on an inequality of representation and 
want of responsibility? My greatest objection is, that it 
will, in its operation, be found unequal, grievous and op- 
pressive. If it have any efficacy at all, it must be by a 
faction of one part of the Union against another. If it be 
called into action by a faction of seven States, it will be 
terrible indeed. We must be at no loss how this combina- 
tion will be formed. There is a great difference of cir- 
cumstances between the States. The interests of the 
carr3dng States are strikingly different from those of the 
productive States. I mean not to give offence to any part 
of America, but mankind are governed by interest. The 
carrying States will assuredly unite and our situations will 
then be wretched indeed. We ought to be wise enough 
to guard against the abuse of such a government. Ee- 
publics, in fact, oppress more than monarchies." 

" The voice of tradition," said Henry, " I trust will in- 
form posterity of our struggles for freedom. If our de- 
scendants be worthy of the name of Americans, they will 
preserve and hand down to the latest posterity, the transac- 
tions of the present times, and though I confess my ex- 
planations are not worth the hearing, they will see ' I 
have done my utmost to preserve their liberty.' " Tyler 
responded, " I also wish to hand down to posterity my op- 
position to that system. British tyranny would have 
been more tolerable.'' 

THE END. 



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LIBRARY OF CONGRESS 




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